JURIST - Paper Chase: Saturday, October 29, 2011

[JURIST] The Supreme Court of Canada Friday declared that the Canadian Human Rights Tribunal (CHRT) [official websites] does not have the power to award compensation for legal costs. The high court's 7-0 decision [judgment text] states that the language used in the relevant federal statute does not allow for the awarding of legal costs [Vancouver Sun report] in the same manner prescribed by most provincial and territorial statutes. The ruling by the Supreme Court concluded the case of Donna Mowat, a former Canadian Forces traffic technician who was awarded $4,000 by the CHRT for sexual discrimination by her superiors. She was also awarded $47,000 for her legal costs, which the Federal Court upheld, but sent back for review since Mowat initially had sought $196,000 following the six-week hearing. The federal appeals court, however, found the tribunal had no jurisdiction to award any legal costs, and the Supreme Court agreed:

The precise interpretive question before the Tribunal was whether the words ... which authorize the Tribunal to "compensate the victim for ... any expenses incurred by the victim as a result of the discriminatory practice" permit an award of legal costs. No reasonable interpretation of the relevant statutory provisions can support the view that the Tribunal may award legal costs to successful complainants. Faced with a difficult point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a dictionary meaning of "expenses" and articulated what it considered to be a beneficial policy outcome rather than engaging in an interpretative process taking account of the text, context and purpose of the provisions in issue. A liberal and purposive interpretation [is required to evaluate human rights legislation, but such an interpretation] cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament.

The decision has raised questions regarding its effect on victims of alleged rights abuses who may avoid mounting cases for fear of cost, particularly when the maximum payout for pain and suffering is capped at $20,000. Conversely, some argue human rights commissions by their very nature are designed to deal with cases more expeditiously than the courts and without the need for expensive legal representation. However many, including Mowat's pro boon attorney, have stated such cases are very complex and necessarily produce large legal fees, and now it will be up to Parliament to amend the federal act to protect successful claimants who are subsequently saddled with huge attorneys' fees.

The Supreme Court has made several important decisions in recent months. In July the court issued rulings [JURIST report] in two major tobacco products cases, relieving the Canadian government of liability for tobacco-related health problems and allowing the provinces to sue the tobacco industry for damages for tobacco-related health care costs. The court ruled [text; materials] unanimously in R. v. Imperial Tobacco Canada Ltd. that the federal government is not liable for any tobacco-related death or illness. In the same opinion the court ruled [materials] in Attorney General of Canada v. Her Majesty the Queen in Right of British Columbia that individual provinces are able to sue tobacco companies for damages to offset the cost of treating tobacco-related illnesses. In June the court declared that it would hear an appeal of convicted terrorist Mohammed Momin Khawaja [CBC backgrounder; JURIST news archive], granting an application for leave to appeal [judgment, PDF] filed by Khawaja challenging the life sentence imposed by the Ontario Court of Appeals [official website]. In March the court agreed to review a lower court order [JURIST report] requiring a Muslim woman to remove her niqab [BBC backgrounder] while testifying after the Court of Appeal for Ontario [official website] in October ruled [JURIST report] that a witness does not have to remove her veil unless the failure to do so will prevent the accused from receiving a fair trial, and should be determined on a case-by-case basis.

[JURIST] China passed new anti-terrorism legislation on Saturday that will amend current criminals laws by providing a definition of "acts of terror" and establish ways for security forces to deal with such acts. The law defines "terrorists" as "those who organize, plot and conduct terrorist acts as well as those who are members of terrorist groups," and terrorist acts as "those acts which are intended to induce public fear or to coerce state organs or international organizations by means of violence, sabotage, threats or other tactics." In an effort to unify enforcement [Reuters report], authorities will now have the power to publish lists of terror suspects and freeze their assets. The law was proposed last week [JURIST report] before the Standing Committee of China' National People's Congress (NPC) [official website] in order to amend China's criminal law that failed to define the terms "terrorist" and "terrorist organization," or to define what constitutes "terrorist acts." Chinese Vice Minister of Public Security Yang Huanning emphasized the danger of having no clear definitions [Xinhua report] in the current law, noting in his report to the NPC that "China is faced with the real threat of terrorist activities, and the struggle with terrorism is long-term, complicated and acute."

Other countries have also recently considered amending their anti-terrorism laws. In August, Philippine President Benigno Aquino III [official website] urged lawmakers to enhance a controversial anti-terror law [JURIST report] by removing provisions that deter authorities from using the law. The proposed change would reduce the $11,700-per-day fine imposed on police or military forces who wrongfully detain terror suspects, as well as removal of a provision requiring suspects to be alerted when they are placed under surveillance. The current law faces criticism from opponents who say its language is overly broad and that is has rarely been used. Also in August, Saudi Arabian officials proposed amendments [JURIST report] to a draft anti-terrorism law that would criminalize taking up arms against the king or crown prince. The Saudi Arabian draft law has been sharply criticized by Amnesty International (AI) [advocacy website] which alleges the proposed law conflicts with international human rights treatises.

[JURIST] Medical marijuana advocates Thursday filed suit [press release] in a California federal court seeking declaratory and injunctive relief against the federal government for its recent crackdown on marijuana dispensaries in the state. Americans for Safe Access (ASA) [advocacy website] petitioned [complaint, PDF] the US District Court for the Northern District of California [official website] to intervene in what the Oakland-based advocacy group claims is a coercive attempt by the federal government to hijack California's state lawmaking authority. The actions in question are part of a coordinated effort announced earlier this month [press release] by California's four US Attorneys, including indictments, civil forfeiture lawsuits against owners of property on which medical marijuana dispensaries operate and dozens of warning letters to other operators and landlords of marijuana stores and to local officials who might implement the state's decriminalization law. ASA's complaint acknowledges the federal government's right to enforce in the states "in an even-handed manner" federal criminal laws against marijuana, but cites the Tenth Amendment [Cornell LII backgrounder] as protecting California's sovereign right to decriminalize marijuana for medical use:

ASA does not challenge the congressional authority to enact laws criminalizing possession and/or control of marijuana ... Nor does ASA challenge the federal government's general authority to enforce its drug laws in the State of California. It is, rather, the government's tactics, and the unlawful assault on state sovereignty they represent, that form the gravamen of ASA's claim. Under the Tenth Amendment, the government may not commandeer the law-making functions of the State of its subdivisions directly or indirectly through the selective enforcement of its drug laws.

Essentially the suit accuses federal agencies of commandeering California's legislative function and interfering with local laws meant to distinguish between medical and non-medical use. ASA's lawsuit was brought on behalf of its 20,000 California members who are "directly and adversely affected" by the federal government's actions.

US courts have been forced to interpret medical marijuana statutes in recent years. Arizona Governor Jan Brewer (R) [official website] announced in June that the state is filing a federal lawsuit [JURIST report] seeking a declaratory judgment over the legality of the state's controversial medical marijuana law passed last November. In January 2010, the California Supreme Court [official website] overturned [JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials]. Earlier that month, New Jersey became the fourteenth US state [JURIST report] to legalize medical marijuana. In November 2009, voters in Maine approved [JURIST report] an expansion of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island and New Mexico. California's Fourth District Court of Appeal ruled in 2008 that the MMP is not in conflict with the Supremacy Clause [JURIST report] and does not violate the Controlled Substances Act (CSA) [text].