By Myrna El Fakhry Tuttle

Source: Kamitana_studio

Reposted from LawNow with permission

In 2024, 1,414 people died in Alberta from drug poisoning, including 1,182 from opioid overdoses. In 2025, the Government of Alberta estimated that addiction related issues cost the province approximately $7 billion annually in health care, lost productivity and justice-system expenses.

In response, Alberta enacted the Compassionate Intervention Act (CIA), which allows involuntary addiction treatment under what the province calls “compassionate intervention.” Alberta is the first province in Canada to adopt such legislation specifically targeting substance use among adults.

Under the CIA, designated individuals – such as adult family members, guardians, healthcare professionals, or police or peace officers – may ask the court for a treatment order when a person’s substance use presents a danger to themselves or others.

What is Involuntary Drug Treatment?

Involuntary drug treatment refers to admitting individuals with substance use disorders or concurrent mental health conditions to treatment facilities without their consent. This requires a  court order or legislative authority.

Treatment often involves short-term hospitalization or psychiatric care, with interventions such as medication, therapy, or stabilization until the individual regains decision-making capacity. Discharge typically occurs when a physician determines the person no longer poses a significant risk to themselves and others.

While the CIA intends to support individuals struggling with addiction, it raises significant concerns when it comes to the Canadian Charter of Rights and Freedoms (Charter).

Involuntary Drug Treatment and the Charter

The Government of Alberta asserts that involuntary treatment under the CIA should only be a last resort. However, critics warn the legislation potentially violates several Charter rights.

Section 7

Section 7 states: “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.”

Section 7’s right to liberty safeguards individual autonomy and free choice. Government action violates this section when it interferes with a person’s physical freedom or their ability to make fundamental personal decisions.

Critics describe involuntary detention as “the most significant deprivation of liberty without judicial process that is sanctioned by our society.” They argue the CIA allows arbitrary detention and coerced treatment based on vague or speculative predictions of harm, raising serious concerns about compliance with fundamental justice. Decisions from courts across Canada further describe this right.

In Fleming v Reid, the Ontario Court of Appeal held that the common law right to bodily integrity and personal autonomy is deeply entrenched in Canadian law “and deserving of the highest order of protection.”

In Rodriguez v British Columbia (Attorney General), the Supreme Court of Canada (SCC) held that the right to security of the person includes “a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from state-imposed psychological and emotional stress.”

In Starson v Swayze, the SCC further affirmed that individuals, including those with mental illness, have the right to refuse medical treatment if they have the capacity to understand the relevant information and appreciate the consequences of their decision, even if they do not acknowledge their illness. This ruling confirms the decisive factor is not whether treatment is in the person’s best interest, but whether the individual has the capacity to make an informed choice.

Section 9

Section 9 reads: “Everyone has the right not to be arbitrarily detained or imprisoned.”

Section 9’s protection against arbitrary detention may be at risk. The CIA grants broad discretion to police and other non-judicial actors to detain individuals deemed likely to cause substantial harm.

The Canadian Centre on Substance Use and Addiction stated:

InvTx [involuntary treatment] raises ethical concerns, as it may violate individual rights by detaining and treating people without consent. Critics argue that non-emergency SUD [substance use disorder] treatment without explicit consent breaches standards of human rights and medical ethics. While related issues are complex in the specific contexts of SSUDs [severe substance use disorders] as described, there are concerns about infringements on peoples’ autonomy and right to consent as well as privacy, beyond the limited evidence supporting its benefits for patients. The counter argument to this is that InvTx is a process in which autonomy is being returned to individuals through the provision of emergency care.

Section 12

Section 12 states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

This includes torture, excessive or abusive use of force by law enforcement officials. Elements of supposed “treatment” and “rehabilitation” may also constitute torture or cruel, inhuman or degrading treatment or punishment. Several decisions of the Supreme Court of Canada further describe what this right protects against.

In Canada (Minister of Employment & Immigration) v Chiarelli, the SCC noted that the broad dictionary definition of treatment is “a process or manner of behaving towards or dealing with a person or thing…”

In Quebec (Attorney General) v 9147-0732 Québec inc, the SCC stated that the purpose of section 12 is “to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals.”

In R v Bissonnette, the SCC cited Quebec (Attorney General) v 9147-0732 Québec inc and elaborated as follows:

Although dignity is not recognized as an independent constitutional right, it is a fundamental value that serves as a guide for the interpretation of all Charter rights … Generally speaking, the concept of dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect … This respect is owed to every individual, irrespective of their actions (at para 59).

In R v Hills, the SCC, quoting Quebec (Attorney General) v 9147-0732 Québec inc and R v Bissonnette, reaffirmed that “dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect, irrespective of their actions (at para 32).”

Section 15

Section 15(1) states: “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.”

This section guarantees that all individuals in Canada regardless of race, religion, national or ethnic origin, sex, age, or disability must be treated with equal respect, dignity, and consideration. Governments must ensure their laws and programs do not discriminate, either directly or systemically.

However, statistics show severe inequalities in opioid-related harms. In Alberta, the opioid poisoning death rate among First Nations people was 8.4 times higher than among non-Indigenous populations in 2022. Although First Nations people represent only 3.4% of Alberta’s population, they accounted for 20% of all unintentional opioid deaths between 2016 and 2022. These figures reflect systemic inequities and raise significant concerns about how government policies respond to the opioid crisis, especially regarding the CIA.

Legal experts argue the CIA may violate Section 15 of the Charter by imposing discriminatory and dignity-denying treatment on Indigenous and racialized communities already experiencing higher overdose rates. They argue this approach fails to treat all individuals with equal respect, dignity, and protection under the law. Rather than addressing root causes such as colonialism, intergenerational trauma, poverty, and lack of access to healthcare, the CIA risks reinforcing existing systemic injustices.

Involuntary Treatment as a Reasonable and Justified Limit on Charter Rights

The Government of Alberta may attempt to justify the CIA as a reasonable infringement of a person’s Charter rights under section 1. The Government may argue that any limitations on individual rights are reasonable and demonstrably justified in the interest of public health.

However, critics argue that the government has not fully considered less intrusive alternatives, such as harm reduction initiatives, safe-supply programs, and voluntary treatment options. They also contend the infringement on personal freedoms may not be proportional to the goals of the CIA.

Only if someone challenges the CIA will the courts interpret the legislation alongside a person’s Charter rights.

By Myrna El Fakhry Tuttle

Source: ACLRC

Reposted from LawNow with permission

Academic freedom is vital to the advancement of knowledge and the health of democratic societies. It allows scholars and students to explore, question, and share ideas without fear of punishment. It helps people think critically, discover new things, and have open discussions.

Law professor and former university president Harry Arthurs stated in 1995: “Academic freedom is a central value, arguably the central value, of university life.”

Defining Academic Freedom

According to the University of British Columbia (UBC) Senate policy, academic freedom includes “the freedom, within the law, to pursue what seems to [members of the University] as fruitful avenues of inquiry, to teach and to learn unhindered by external or non-academic constraints, [and] to engage in full and unrestricted consideration of any opinion.”

The Canadian Association of University Teachers (CAUT) defines academic freedom as the right to:

• Teach and discuss freely, without doctrinal constraints
• Conduct research and publish findings
• Create and perform artistic works
• Engage in service activities
• Express opinions about the institution, its administration, and the broader system
• Access, preserve, and provide access to documentary materials in all formats
• Participate in professional and representative academic bodies

The CAUT policy affirms that academic freedom protects individuals from institutional repercussion and does not require them to remain neutral. All academic staff have the right to carry out their duties without fear of retaliation or censorship from their employer, the government, or any other authority.

In 2022, the National Assembly of Quebec adopted Bill 32, An Act Respecting Academic Freedom in the University Sector. Section 3 of this Act defines academic freedom as the right to “engage freely and without doctrinal, ideological or moral constraint, such as institutional censorship.” This includes the freedom to teach, discuss, research, create and publish. It also includes the right to express opinions about society and institutions, and about any doctrine, dogma or opinion.

Academic freedom applies not only to regular faculty, but also to adjuncts, students, alumni, board members, honorary degree recipients, and invited guests.

Its scope extends to both intramural expression (within academia) and extramural expression (in public discourse), and includes civil rights such as freedom of expression, assembly, and participation in public debates. However, academic freedom is not unlimited. It must be exercised within the law and with respect for the rights of others.

Protection of Academic Freedom

In the United States, the First Amendment protects academic freedom. In Canada, neither the Canadian Charter of Rights and Freedoms (the Charter) nor human rights legislation protect academic freedom. Instead, it is a negotiated right, secured primarily through collective bargaining agreements between faculty associations and universities.

Jon Thompson, Professor Emeritus and former President of the Association of University of New Brunswick Teachers, stated:

In its most clearly characterized and defensible form, academic freedom is a right of university academic staff held by virtue of their institutional employment. In outline, its purpose is to ensure they can challenge received wisdom, put forward new ideas, participate freely in collegial governance, and exercise fully their rights as citizens without suffering any institutional penalties. As such, it differs from general freedom of expression for all citizens protected through the Canadian Charter of Rights and Freedoms and provincial human rights codes. In Canadian universities the right to academic freedom is protected through articles in collective bargaining agreements.

Additionally, Canadian universities are bound by hate speech and anti-discrimination laws, which limit expression more strictly than U.S. law under the First Amendment.

Historically, academic freedom in Canada existed as informal policy or tradition. Prior to the widespread unionization of faculty in the 1970s, the protection of academic freedom largely depended on the discretion and goodwill of university administrators. Today, faculty unions play an important role in safeguarding academic freedom, primarily through grievance and arbitration mechanisms. Because many faculty members at Canadian universities belong to unions, most of them are protected by contracts that set out their rights and working conditions.

Legal Recognition and Limitations

Canadian courts have given limited attention to the issue of academic freedom. In McKinney v University of Guelph, Justice Gérard La Forest of the Supreme Court of Canada acknowledged its importance but narrowed its scope, stating it protects only “against the censorship of ideas.”

The Supreme Court has previously ruled that neither the Charter nor Quebec’s Charter of Human Rights and Freedoms applies to universities. However, in UAlberta Pro-Life v Governors of the University of Alberta, the Alberta Court of Appeal found that when a university regulates student expression as part of its core public functions, it may fall under Charter scrutiny. Although this decision is currently binding only in Alberta, it reflects a shifting legal perspective on academic freedom and institutional responsibility.

Commentary on the State of Academic Freedom

In Canada, academic freedom is increasingly under pressure, reflecting broader global trends.

Around the world, academic freedom is facing significant threats. Governments are increasingly trying to control what educators and researchers can say or teach—often for political reasons. This is happening not only in authoritarian countries but also in some democracies. As a result, certain topics are being removed from school and university programs, some institutions are being targeted, and academics are being punished. These actions are making it harder for academics to freely share ideas and have open discussions.

By Myrna El Fakhry Tuttle

Source: Designed by Freepik

Reposted from LawNow with permission

Annexation is one state forcibly acquiring another state’s territory, usually through a treaty or use of force. It is illegal under international law.

Recently, there has been increased discussion in the media about annexation. Many are now asking what this term really means and how it comes into play in international relations.

What Does Annexation Mean?

Annexation is one state (country) forcibly acquiring another state’s territory.

No state, regardless of how powerful it may be, has the authority to annex another state. Annexation is illegal under international law and has no impact on the legal status of the acquired territory, which continues to be considered occupied.

The International Committee of the Red Cross states:

[Annexation] refers to a unilateral act of a State through which it proclaims its sovereignty over the territory of another State. It usually involves the threat or use of force, as the annexing State usually occupies the territory in question in order to assert its sovereignty over it. Annexation amounts to an act of aggression, forbidden by international law.

Annexation can occur through use of force (described more below) or through two states signing a treaty.

Annexation treaties, unlike other treaties involving territorial changes, often involve an element of coercion. It typically means the state ceding territory either is compelled to sign a peace treaty after a military defeat or is represented by a puppet government willing to accept the annexation. Article 52 of the Vienna Convention on the Law of Treaties (1969) explicitly states that “a treaty is void if it is procured through the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” Therefore, annexations based on treaties obtained through coercion or force are not legally valid.

International law prohibits annexation for several key reasons, including:

• use of force
• violation of a state’s sovereignty and of a peoples’ right to self-determination
• national security concerns, and
• violations of jus cogens norms—fundamental principles of international law that cannot be overridden.

Annexation by Use of Force

The Charter of the United Nations prohibits, among other things, annexation using force. Article 2(3) mandates that Member States “settle their international disputes by peaceful means” and article 2(4) says “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

In 2003, during the Iraq conflict, Kofi Annan, Secretary-General of the United Nations, stated:

No principle of the Charter is more important than the principle of the non-use of force as embodied in Article 2, paragraph 4 …. Secretaries-General confront many challenges in the course of their tenures but the challenge that tests them and defines them inevitably involves the use of force.”

The International Court of Justice (ICJ) has characterized the “illegality of territorial acquisition resulting from the threat or use of force” as a “corollary” to the “principles of the use of force incorporated in the UN Charter.”

In 1970, newly independent states, concerned about the enduring effects of colonization through external interference (including military or economic pressure), adopted a resolution in the UN General Assembly. This resolution was titled the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (the Declaration on Principles of International Law for short). The Declaration notes that “all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”

The Declaration on Principles of International Law also asserts that “such a threat or use of force constitutes a violation of international law and the Charter of the United Nations.”

Consequently, the use of force in any form is seen as an internationally wrongful act that does not create any legal rights for the annexing state. Therefore, annexing another territory through use of force is illegal under international law. All states must not use force—or even the threat of force—in their relations with other states.

Meaning of Force

The UN Charter doesn’t define the term “force.” This leaves room for interpretation, especially regarding the use of economic and political coercion.

At different points in history, some countries—typically from the developing world or during the Cold War — argued that “force” should include other forms of pressure, such as political and economic coercion. These actions can undermine a state’s sovereignty.

The Declaration on Principles of International Law says states should “refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State.”

In addition, the Organization of American States deemed the use of coercive economic measures as an illegal use of force. Article 20 of its Charter notes that “no State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind.”

Other States Recognizing Annexation

In 1932, the United States adopted the Stimson Doctrine, which declared that territorial changes achieved through forceful annexation would not be acknowledged as legitimate. In other words, the United States refused to recognize such actions as lawful territorial claims.

The Declaration on Principles of International Law declares that “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

When a state declares annexation on its own, the international community usually doesn’t recognize the act. The annexing state often faces legal consequences like sanctions or global condemnation. A well-known example of annexation is when Russia took Crimea from Ukraine in 2014. The international community widely criticized this act. The UN called the annexation illegal and urged Russia to restore Ukraine’s sovereignty.

Even as international law continues to evolve, the global community has firmly established that acquiring territory through force or the threat of force – whether military, economic or political – is illegal. This prohibition is rooted in international appreciation for the principles of sovereignty, self-determination, and global stability.

By Myrna El Fakhry Tuttle

Source: flickr/JamesInOregon

Reposted from LawNow with permission

The legal system in Canada treats young offenders differently than adults.

The Youth Criminal Justice Act (YCJA) regulates the youth justice system. Under the YCJA, young people are held accountable for their criminal acts, but not in the same way as adults. The YCJA provides special protections, unique procedures and numerous possible sentences for youth offenders.

However, young people can get an adult sentence in certain circumstances. In these cases, the Criminal Code sentences for adult offenders will be applied to young offenders.

The YCJA Provisions

Section 2(1) of the YCJA defines a “young person” as anyone who is “12 years old or more, but less than 18 years old.” Also, under this section, adult sentence means “any sentence that could be imposed on an adult who has been convicted of the same offence.”

Section 3(1)(b) of the YCJA states that “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize rehabilitation and reintegration,” among others.

The YCJA acknowledges that young people are vulnerable and have special needs and circumstances that must be considered when making decisions about them. For example, section 42(2) of the YCJA contains specific sentencing measures for young offenders that differ from the sentencing provisions for adults under the Criminal Code. However, under the YCJA, young offenders can be tried as adults for serious violent offences such as “murder, attempted murder, manslaughter or aggravated sexual assault.”

Adult Sentences for Youth

Before the YCJA was enacted, section 16 of the Young Offenders Act allowed the transfer of young persons who committed indictable offences to adult court. The YCJA eliminated this process.

However, at the time, section 72(2) of the YCJA, required young people to persuade the court that they should not be sentenced as adults.

According to the Department of Justice:

The YCJA established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. Offences that can lead to an adult sentence are indictable offences committed when the youth was at least 14 years old, for which an adult would be liable to imprisonment for more than two years. The YCJA […] also included a presumption that youth 14 or older found guilty of certain serious violent offences would receive an adult sentence. In these circumstances, the onus was on the young person to convince the court that a youth sentence would be appropriate.

This onus was challenged in 2008 by a youth convicted of manslaughter. In R v D.B, 17-year-old Bwas accused of killing R in a fistfight. B pleaded guilty to manslaughter – which was a presumptive offence under the YCJA and where an adult sentence was expected to be imposed. B sought a youth sentence, which the Crown opposed. B then challenged, under section 7 of the Charter of Rights and Freedoms, the constitutionality of the onus provisions when there is a presumptive offence. He claimed that the onus provisions placed the burden on the young person to convince the court that they should be given a youth sentence, rather than on the Crown to prove to the court that an adult sentence should be imposed.

The Supreme Court agreed with B and found that the sentencing provisions under section 72 of the YCJA were unconstitutional. The Court also overturned a provision that required young offenders who had been given adult sentences to show that their identities should continue to be protected by a publication ban.

The Supreme Court stated:

Because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability (at para 41).

The Supreme Court decided:

Under the presumptive offences regime, an adult sentence is presumed to apply and the protection of a publication ban is presumed to be lost. The impugned provisions place the onus on young persons to satisfy the court that they remain entitled to a youth sentence and to a publication ban. This onus on young persons is inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice which requires the Crown to justify the loss both of a youth sentence and of a publication ban. The impugned provisions are therefore inconsistent with s[ection] 7 of the Charter and are not saved by s[ection] 1. To the extent that they impose this reverse onus, they are unconstitutional (at para 95).

The publication ban is part of the sentence, removing it “makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe” (at para 87). The Supreme Court stated that the Crown must prove that an adult sentence is necessary. Therefore, the Crown should also have to prove that the lifting of a publication ban should be added to the sentence (at para 94).

Amending the YCJA

In 2012, Parliament responded to the Supreme Court decision by amending the YCJA, repealing the presumptive offences provisions. The Crown must now persuade the court that an adult sentence is justified.

After the amendment, section 72 of the YCJA read:

1. The youth justice court shall order that an adult sentence be imposed if it is satisfied that
   1. the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
   2. a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.

Section 73 (1) states:

When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Summary

It is generally accepted that young people lack the maturity of adults. The YCJA addresses this by providing young people with their own unique court process and punishments.

A court may decide, however, to sentence a youth in the same way as an adult, for certain violent offences. That said, if the Crown wants to ask the court for an adult sentence, it must give notice of that intention before a trial occurs. The judge will hear arguments on that matter after a trial and a guilty verdict.

By Myrna El Fakhry Tuttle

Source: flickr/Me

Reposted from LawNow with permission

How can we balance an employer’s right to know about illness or disability and an employee’s right to privacy?

Editor’s Note: A version of this important article first appeared in LawNow in 2019. It has been reviewed for legal accuracy in 2024 by the author.

Requesting medical information from employees may raise privacy issues. Employees have the right to keep their medical information confidential and private. But employers also have the right to know about their employees’ illness or disability, and have the right to seek medical information in order to provide appropriate accommodation. So, how can we balance the two?

In Alberta, the Freedom of Information and Protection of Privacy Act (FOIP) section 17 provides that the disclosure of some personal information, including medical information, is presumed to be an unreasonable invasion of privacy. Without consent, such information would only be released in exceptional circumstances.

Section 3 of the Personal Information Protection Act (PIPA) covers the collection, use, and disclosure of personal information. PIPA balances an individual’s right to have his or her personal information protected, and an organization’s need to collect, use or disclose personal information for purposes that are reasonable. Under PIPA, while you may need to collect, use and disclose certain personal information, you must, according to privacy legislation, explain the reason for collecting the information and how it may be used or disclosed (see: A Guide for Businesses and Organizations on the Personal Information Protection Act).

The Health Information Act also governs the disclosure of health information in Part 5.

An employee’s personal medical information is generally acknowledged to be private and confidential. However, it is well established (and should be obvious) that an employer is entitled to access sufficient information for legitimate purposes. This includes assurance that the employee is able to continue or return to work, or to provide necessary appropriate accommodation to ensure that the employee can work without jeopardizing his or her safety, or that of other employees. An employer is entitled only to the least such information necessary for the purpose and an employee should generally not be required to disclose their medical files, or even diagnosis or treatment. However, exactly what is required will depend on the circumstances and purpose – and may very well include diagnosis, or treatment, or other information (Complex Services Inc v Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 (ON LA) at para 84)..

Employers may seek medical information in a variety of circumstances, including to support:

• a request for short-term sick leave;
• extended sick leave, or partial medical leave;
• an application for benefits;
• a request to return to work; or
• a request for accommodation (see: Devins, Jewell & Sartison, Medical Information in the Accommodation Process, (December 2013)).

An employer has a legitimate interest in seeking information related to employee’s prognosis and ability to attend work on a regular basis. The employer is entitled to request that the employee provide medical information and then to consider what, if any, impact the information had on its duty to accommodate the employee in the workplace. There is nothing inherently discriminatory for an employer to request a doctor’s note from employees to substantiate a request for sick leave (Stewart v Brewers Distributor and another, 2009 BCHRT 376 at para 48).

The Human Rights Tribunal of Ontario stated that an employee who seeks workplace accommodation has a duty to cooperate in the accommodation process by providing his or her employer with a reasonable amount of information about their physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship (Bottiglia v Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII) at para 99, affirmed 2017 ONSC 1517 (CanLII)).

The duty to accommodate requires persons seeking accommodation to make available to their employer such details of their medical circumstances as are necessary to prove the disability and to design and achieve the accommodation. In some cases, this can include diagnosis or treatment information, but each case depends upon its own circumstances (Peace Country Health v United Nurses of Alberta, 2007 CanLII 80624 (AB GAA)).

The duty to accommodate extends to employees who use medical marijuana, supported by a medical certificate, in the workplace. Can employers remove employees who use medical marijuana from safety-sensitive positions? In Calgary (City) v Canadian Union of Public Employees, the arbitration board stated that if there was no evidence that the grievor’s use of marijuana for medical purposes had any impact on his or her ability to perform safety-sensitive duties in a safe manner, then the employer cannot transfer the grievor to a non-safety-sensitive position (Calgary (City) v Canadian Union of Public Employees (Cupe 37), 2015 CanLII 61756 (AB GAA)). However, an employer who terminated an employee working in the logging industry for smoking marijuana without having a medical authorization to lawfully possess and use marijuana for medical purposes and without informing his employer, did not discriminate against its employee (French v Selkin Logging, 2015 BCHRT 101 (CanLII)).

In the purely technical sense of the term, an employee has an “absolute” right to keep their confidential medical information private. But if the employee exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there are likely to be consequences. This is because an employee has no right to sick leave benefits or accommodation unless the employee provides sufficient reliable evidence to establish that they are entitled to benefits, or that they have a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided (Complex Services Inc. at para 86).

In certain circumstances, the procedural aspect of an employer’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert. An employer is not entitled to request an Independent Medical Examination (IME) in an effort to second-guess an employee’s medical expert. An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate (Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII) at paras 76-77).

However, employers need to have the employee’s authorization in order to collect and use personal information. Thus, an employer cannot contact an employee’s doctor without the consent of the employee. There is nothing in the mere existence of an employment relationship that gives the employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential. An employer only has a right to an employee’s confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose. Except where required or permitted by law, an employer cannot seek and a doctor cannot give out any patient medical information without the patient’s freely given informed specific authorization and consent (Hamilton Health Sciences v Ontario Nurses’ Association, 2007 CanLII 73923 (ONLA) at para 21).

In addition, there are some restrictions on the employers’ right to seek medical information. Employers are not allowed to use and disclose the medical information that they receive any way they want. The improper disclosure of the employee’s medical information can constitute a breach of PIPA. An employer discussing an employee’s medical information with other employees is inappropriate. Employees who have disclosed their medical information in order to be accommodated have the right to confidentiality. Medical information that they share with their employer should be kept private, unless they give their consent to the employer to disclose the information. Within the workplace, those who need access might include the employee, the employee’s supervisor and other staff handling accounting, payroll, deductions, benefits or related issues (see: An Employer’s Guide to Employment Rules).

Employees have the right to keep their medical information private. But in order to be accommodated in the workplace, they are required to provide relevant medical information. Employers have a duty to accommodate employees to the point of undue hardship, therefore they have a right to seek medical information when necessary.

By Myrna El Fakhry Tuttle   

Source: Designed by Freepik   

Reposted from LawNow with permission   

Canada has two official languages: French and English. We always wonder why.

Editor’s Note: A version of this important article first appeared in LawNow in 2019. It has been reviewed for legal accuracy in 2024 by the author.

Canada’s two colonizing peoples are the French and the British. They controlled land and built colonies alongside Indigenous peoples, who had been living there for millennia. They had two different languages and cultures. The French spoke French, practiced Catholicism, and had their own legal system (civil law). The British spoke English, practiced Protestantism, and followed a common law system.

The British controlled parts of what is now Newfoundland. The French existed in the Maritimes (modern-day Nova Scotia, New Brunswick and Prince Edward Island) and Québec.

The French colonized Canada first. However, the British took over all French colonies in the Maritimes and Québec through different wars, including the Queen Anne’s War (1702-1713) and the Seven Years’ War (1756-1763). As a result, the British managed these territories politically, but the French dominated them culturally. That was a matter the British had to deal with. People in those colonies spoke French and followed French religious and legal practices (see: Official Bilingualism in Canada: History and Debates) [Official Bilingualism in Canada]).

In Québec, the British decided to authorize French culture and language but within British control. The British passed the 1763 Royal Proclamation. This action forced British law and practices on British colonies in North America, including those with large French populations. However, in 1774, the British enacted the Québec Act, which overturned this practice. This Act guaranteed the practice of the Catholic faith in Québec and allowed French civil law in private matters. In matters related to public administration, such as criminal prosecution, the common law system applied (see: Official Bilingualism in Canada).

In 1841, the Act of Union recognized that both the British and the French existed side-by-side but with the intention that French Canadians would eventually integrate into the British culture. The intention was that religious, cultural and legal dualism would be only temporary. This perception, based on the Durham Report, introduced a British parliamentary system including in Québec, but it could not banish the French language and the Catholic religion (see: Cultural Duality).

Following that, the federal government enacted many laws to preserve both languages. In 1867, the year of Confederation, the British Parliament passed the British North America Act (now the Constitution Act, 1867). This Act united three British colonies – Nova Scotia, New Brunswick and the province of Canada (Ontario and Québec) – as the “Dominion of Canada”. The Act allowed for other British colonies in North America to be admitted as well. With that came the idea that English and French-speaking communities should exist side-by-side and complete each other:

The Constitution Act of 1867 (formerly known as the British North America Act) established English and French as legislative and judicial languages in federal and Québec institutions. It also set out the right to denominational schooling, which at that time was closely associated with the anglophone (Protestant) and francophone (Roman Catholic) linguistic and cultural traditions. (See: Bilingualism.)

Section 133 of the Constitution Act, 1867 defined English and French as the official languages of the Canadian Parliament, as well as the courts. It also established both English and French as the official languages of the Québec legislature and courts. It states:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Québec.

The Acts of the Parliament of Canada and of the Legislature of Québec shall be printed and published in both those Languages.

In 1969, the federal government passed the first Official Languages Act on the recommendation of the Royal Commission on Bilingualism and Biculturalism. It proclaimed French and English as the official languages of Canada. According to this Act, all federal institutions must provide services in French or English, depending on the requested matter. In order to manage its implementation, the Act created the Office of the Commissioner of Official Languages (see: Official Languages Act (1969)).

The first Official Languages Act’s purpose was not to ensure that every Canadian spoke both English and French. The aim was to offer federal services to Canadian citizens in the official language of their choice. Those services were to be available in the requested language without any delay and were to be of equal quality, regardless of the chosen language (see: Understanding Your Language Rights).

One year later, in 1970, the federal government established the Official Languages in Education Program. This program provides provinces and territories funding for second language instruction and minority language education in both English and French. Besides this program, federal, provincial and territorial governments have also embraced French immersion education programs. In these programs, students receive most of their education in the French language (see: Official Bilingualism in Canada).

Moreover, to ensure that all Canadians can read and understand product packaging, the federal government enacted the Consumer Packaging and Labeling Act in 1974. This Act requests that consumer products sold in Canada be labelled in both English and French.

In 1982, the Charter of Rights and Freedoms recognized language rights. Section 16 of the Charter acknowledges that English and French are the official languages of Canada. Both languages have equal status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. Sections 17, 18 and 19 state that English or French are to be used in any debates and in the proceedings of Parliament, in parliamentary papers, and in court established by Parliament. Section 20 deals with the use of English or French in communications between federal institutions and members of the public. Section 23 talks about minority language education rights for English-speaking children in the province of Québec and French-speaking children in the rest of Canada.

In 1988, the federal government revoked the Official Languages Act of 1969 and replaced it with a new Official Languages Act. Section 2 sets out that the purposes of the new Act are to:

(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, … ;

(b) support the development of English and French linguistic minority communities … ; and

(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

In 2005, the Government of Canada amended Part VII of the Official Languages Act. This part requires all federal institutions to take positive actions to promote the acknowledgment and use of both English and French in Canadian communities (see: Archived – Perspectives of Canadians of Diverse Backgrounds on Linguistic Duality).

The Official Languages Act is a federal act and applies only to federal institutions. It does not apply to provincial and territorial governments. Therefore, each of Canada’s provinces and territories has adopted its own official language policy. Québec is the only province that acknowledges French as its sole official language. New Brunswick is the only bilingual province where both English and French are official languages. In other provinces and territories where English is the main working language, they provide government services in French as well as Aboriginal languages (see: Language in Canada).

The government enacted the laws described above in order to protect language rights and ensure that all Canadians are treated equally. However, having two official languages does not mean that every Canadian must speak both languages. It means that all federal services must be offered to Canadian citizens in both French and English. Bilingualism is one of Canada’s core values of inclusiveness and diversity. Canadians have recognized that diversity is a strength that has encouraged openness toward other peoples. And because of bilingualism, Canada is a more welcoming country for immigrants and refugees from different cultures and ethnic backgrounds.

By Myrna El Fakhry Tuttle

Source: flickr/kaysgeog

Reposted from LawNow with permission

Some universities have issued trespass notices and have ordered the encampment to be removed, with the help of the police, within hours of its set up. Other universities have filed for an injunction – that was denied by the court – to dismantle the encampment. While other universities have been granted an injunction against the encampment.

The Right to Protest

The right to protest is constitutionally protected by the Canadian Charter of Rights and Freedoms (the Charter).

Section 2 of the Charter states:

Everyone has the following fundamental freedoms:

1. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
2. freedom of peaceful assembly; and
3. freedom of association.

Freedom of speech is also stated as a human right and fundamental freedom in the Canadian Bill of Rights, sections 1(d) and (f).

The right of students to express their opinions is a crucial element of a democracy. Freedom of expression is a basic characteristic of personal development. It gives us the right to dissent and the right to be heard. We can make our own choices about our basic beliefs by being exposed to different thoughts and opinions.

As I mentioned in a previous article, “the freedoms mentioned in the Charter guarantee that Canadians are free to hold their own opinions, discuss them and communicate them to other people. These activities are essential principles of individual liberty. They are also crucial to the success of a democratic society where people can freely discuss matters of public policy, can criticize governments and can express opinions on how to deal with social problems.”

Section 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies.

When it comes to universities, provincial courts of appeal have been inconsistent on the question of whether the Charter applies to university campus events. In UAlberta Pro-Life v Governors of the University of Alberta, the Alberta Court of Appeal ruled in 2020 that the University of Alberta’s regulation of free expression on campus is a form of governmental action subject to the Charter.

What does Freedom of Expression mean?

In Irwin Toy Ltd. v Quebec (Attorney General), the Supreme Court of Canada stated:

‘Expression’ has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

We cannot, […] exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. […]. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection.

The Federal Court of Appeal held in Weisfeld v Canada (Weisfeld) that “expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition….”

In Batty v City of Toronto, Justice Brown following the reasoning in Weisfeld, held that the structures and tents erected by the protesters in a public park constituted a mode of expression protected by section 2 of the Charter (at para 72).

In addition, protests and demonstrations take place to spread a message; therefore, courts have dealt with section 2(c) as being ancillary to freedom of expression in section 2(b).

Limits on Freedom of Expression

Charter rights and freedoms are not absolute, the government can impose reasonable limits on them under section 1 of the Charter, which 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.

This section requires a balancing of people’s rights and freedoms against valid government objectives and policies. This balancing act seeks to locate “reasonable limits” that can be “demonstrably justified in a free and democratic society.”

For example, freedom of expression does not protect violence or threats of violence. It is limited by the Criminal Code hate speech laws. Therefore, protesting itself is legal, as long as protestors do not break any laws.

As Julian Walker stated: “the Charter’s guarantee of freedom of expression is not absolute. It has upheld restrictions on forms of expression that it has deemed to run contrary to the spirit of the Charter, such as hate speech, given that the purpose of such expression is to prevent the free exercise of another group’s rights”.

Recent Court Decisions

In May 2024, Justice Marc St Pierre denied the request for an injunction to dismantle the encampment at McGill university in McGill University et the Royal Institution for the Advancement of Learning c Association McGillienne Des Professeur E S de Droit (AMPD)/Association of McGill Professors of Law (AMPL) et al.

Justice St Pierre found that there was no urgent need to act since “no serious or violent incident had occurred at the encampment since it was established and even a confrontation with counter-protesters was peaceful.” He added that “other factors involving the balance between the activists’ right to protest and freedom of expression and, conversely, the university’s right to its property would take more time to weigh and shouldn’t be decided within the context of a provisional injunction request.” Therefore, he denied the injunction.

In a totally different ruling that took place in July 2024, Justice Markus Koehnen granted the University of Toronto – in University of Toronto (Governing Council) v Doe et al. – an injunction against the encampment.

Justice Koehnen decided not to determine whether the Charter applied in this case. However, he stated:

In the event I am wrong in this, I will nevertheless assess, in an alternative analysis whether the Charter applies and, if so whether the injunction the University seeks would breach Charter rights…That alternative analysis, however, makes no difference to the final outcome. In that alternative analysis I conclude that the Charter does not apply to the University in this situation. In the further alternative I conclude that if the Charter did apply, the restriction on the use of Front Campus breaches the respondents Charter rights but that the breach is justified under section 1 of the Charter (at para 116).

Justice Koehnen found that the university made a strong case for trespassing (at para 123). He granted the injunction even though he acknowledged that the encampment was peaceful (at para 69).

He stated: “the statements by the named respondents to which I was taken during oral argument are of the nature and intensity that one might expect from a student activist in their twenties, but have never approached violence or hatred” (at para 81). “There is no evidence to suggest that the named respondents have engaged in any acts of antisemitism, racism, violence, hate speech, or vandalism” he added (at para 212).

Justice Koehnen said the injunction would not prevent protesters from continuing to protest wherever they want on campus, but it would allow protests to take place only between the hours of 7 am and 11 pm. It would also prohibit them from camping, setting up structures or blocking entry to university property (at para 171).

In addition, Justice Koehnen stated that the protesters’ conduct is inconsistent with freedom of expression (at para 194). “There is ample judicial authority that says protestors do not have the right to occupy property that doesn’t belong to them” he asserted (at para 181).

He concluded by saying that “case law is clear that exercising freedom of expression is not a defence to trespass” (at para 220). “The university has suffered irreparable harm because of the protesters’ continued appropriation of Front Campus and their exclusion of others from Front Campus” he added (at para 220).

Summary

Peaceful protests cannot be silenced in a free and democratic society. Students have a right to express their opinions on university campuses. If there is any threat of violence, universities can take reasonable steps to avoid that.

University campuses are private property. Therefore, they can have their own rules about protests. But even so, they may not be private property for Charter purposes. As Richard Moon stated – regarding the Alberta Court of Appeal’s 2020 decision – “this would mean university students have a Charter right to protest on campus. It’s an interesting argument, and I expect the Supreme Court will have something to say about it at some point.”

By Myrna El Fakhry Tuttle

Source: flickr/Helge V. Keitel

Reposted from LawNow with permission

Canada’s Medical Assistance in Dying (MAID) laws were set to change in March 2024 to include mental disorders. But the federal government has once again delayed implementation until at least March 2027.

Medical Assistance in Dying (MAID) was legalized in Canada in 2016 and became available to eligible adults with terminal illnesses. In 2021, An Act to amend the Criminal Code (medical assistance in dying) expanded MAID to include people whose natural death was not considered reasonably foreseeable.

The 2021 changes came in response to the 2019 Superior Court of Quebec’s decision in Truchon c Procureur général du Canada ( Truchon ). The Superior Court found the requirement that an individual’s death needed to be reasonably foreseeable to be eligible for assisted dying was unconstitutional and violated both Charter sections 7 and 15. The Court also found the violations were not justified under Charter section 1 (at paras 682-735).

The Current Law

Section 241.1 of the Criminal Code defines MAID as:

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or
(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.

Section 241.‍2(1) of the Criminal Code reads:

A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible […] for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

Delays in Including Mental Illness

MAID excludes individuals whose sole underlying medical condition is a mental illness. The legislation states that “mental illness is not considered to be an illness, disease or disability” (see section 241.2(2.1) of the Criminal Code ). At first, the exclusion was delayed for a two-year period so the federal government could set up appropriate safeguards. (In order to appreciate the evidence in favour of including people with mental illnesses under MAID, see paras 351 to 466 of Truchon ).

In February 2023, the government extended the deadline until March 2024. Then in February 2024, the government extended the deadline – once again – until March 2027 .

The latest delay came after the Special Joint Committee on Medical Assistance in Dying concluded in itsreportthat “ the medical system in Canada is not prepared for medical assistance in dying where mental disorder is the sole underlying medical condition ( MAID MD-SUMC ).”

Reasons for the Delay

Consent and Capacity

To be eligible for MAID, a person must be able to give informed consent and be capable of making medical decisions. Giving informed consent means having capacity to give consent. In Canada, the law presumes adults have the legal capacity to make healthcare decisions unless the situation suggests otherwise.

People with mental disorders are usually considered to have the capacity to make treatment decisions. However, mental disorders can affect a person’s decision-making in different ways.

Mental disorders can be defined, according to the Council of Canadian Academies, as “health problems that disturb or impair a person’s thoughts, experiences, emotions, behaviour, and/or ability to relate to others.”

The Council of Canadian Academies stated:

Prohibiting or more broadly permitting MAID MD-SUMC is a question that must be considered alongside key issues such as eligibility criteria, including capacity to provide consent; vulnerability and autonomy; the state of mental healthcare and treatment in Canada; and the realities of suicide.

Jessica Taylor affirmed:

As part of the eligibility criteria for MAID includes providing informed consent, an individual must be capable of making decisions related to their health by being mentally competent or capable. ‘A person is mentally competent or capable when they have the capacity to understand the nature and consequences of their actions and choices, including decisions related to medical care and treatments.’

The Expert Panel Working Group on MAID stated:

In some instances (e.g., certain neurocognitive disorders like dementia, neurodevelopmental disorders and intellectual disabilities, and some cases of schizophrenia), there is a clear decline in the cognitive abilities needed to understand and appreciate information. In other instances (e.g., depressive, bipolar, and anxiety disorders), a person’s capacity for making decisions can be impaired by the disorder’s impact on their mood and emotions. For example, depression can impair one’s ability to deliberate about the future […] or to maintain a minimal concern for self […]. Furthermore, some disorders, such as bipolar disorder, may be characterized by manic, depressive, or mixed states, in which the impact of emotion on capacity will vary.

Therefore, assessing decision-making capacity for MAID MD-SUMC for people with mental disorders can be a real challenge as their wish to die could be a symptom of their condition.

Health Care System Readiness

Expanding MAID to mental illness in Canada will result in our law becoming one of the broadest in the world. Many critics have concerns.

The Centre for Addiction and Mental Health (CAMH)’s concern about the expansion is that the health care system is not ready. They say we need more time to ensure that guidelines, resources and experts are in place. In addition, the health care system is not equipped to deal with the anticipated increase in MAID requests that come with expanding eligibility.

According to CAMH :

[…] mental illness can be severe and cause suffering that can be comparable to physical illness. But the health care available for mental illness is not comparable to the health care available for physical illnesses.

Mental health care has been significantly underfunded compared to physical health care. There are also inconsistencies in treatments covered by different provincial health plans. This means that many people across Canada do not have ready access to the full range of evidence-informed treatments that can assist in their recovery.

The Canadian Mental Health Association (CMHA) stated that “robust and rights-based safeguards to prevent harm and discrimination must accompany the legislative change permitting MAID for those with a mental disorder as their sole underlying condition.”

According to CMHA, there has been insufficient time and resources allocated to:

• consulting with community-based partners and people with lived experience of mental health and substance use health concerns regarding provincial and territorial MD-SUMC implementation frameworks,
• supporting frontline mental health and substance use health staff who are navigating inquiries regarding MD-SUMC and may be involved in MD-SUMC assessments, and
• ensuring people with mental illnesses and substance use disorders can access the medical, social and economic care they need to be well.

Furthermore, some psychiatrists have said expanding MAID to people with mental illnesses would not give them the chance to find treatments that enhance their lives. According to Virginia Duff, it could violate the principles of suicide prevention. John Maher stated that “even patients with serious mental illnesses can improve; they often just need more time to find the right treatments that work for them.”

According to the federal government, the extension of the temporary exclusion will give provinces and territories more time to adjust their health care systems. It will allow them time to develop new safeguards to apply to people with mental illnesses. Further, it will also allow practitioners to become familiar with available supports, guidelines, and standards.

How Canadians feel

In a February 14, 2024 poll, less than half of Canadians agreed that MAID should be expanded to people whose sole underlying condition is mental illness.

Seventy-seven per cent of those surveyed are satisfied with the current MAID legislation. Only forty-two per cent agree to expanding the eligibility to people who have only mental-health conditions.

Having been delayed twice, March 2027 will reveal whether Canada goes ahead with an expanded MAID program.