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IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETW EEN: William Leonard George Turner Applicant -andCommissioner of the

Northwest Territories Respondent

BRIEF

William L. Turner 5450 52nd Street Yellowknife, NT X1A 3K1 Tel: (867) 445-1116 Email: williamturner83@hotmail.com

Legal Argument Jurisdiction 1. This Honourable Court is a superior court of record. As such this Honourable Court has inherent core jurisdiction over constitutional matters. A superior court is always a court of competent jurisdiction.1 2. There is no alternative forum. Subsection 67(2) effectively statute-bars any proceeding under the HRA, and this Honourable Court is the only forum to determine the mobility rights questions. Standing Private Interest Standing 3. In order to challenge the constitutional validity of a law, a person must demonstrate a special interest in the impugned legislation. This can be achieved through demonstrating private interest standing, public interest standing or both2. 4. A party seeking private interest standing bears the burden of demonstrating a direct, special interest in the proceedings. The prejudice caused by the impugned legislation cannot be too indirect, remote or speculative.3 5. However, private interest standing was granted to a litigant who challenged the abortion provisions of the Criminal Code. The legislation could never be applied to the claimant since he was neither a doctor nor a woman4. 6. As a regular applicant for jobs within the GNWT, the applicant is directly affected by the AA Policy. The applicant was told at each stage the Affirmative Action Policy and Directive (the AA Policy) would be applied. However, the applicant qualifies for priority as Resident Disabled. Therefore, it is the position that, save for the priority for Resident Disabled, the applicant has private interest standing.

1 2

R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Smith, [1989] 2 S.C.R. 1120 Bedford v. Canada (2010), 102 O.R. (3d) 321 at pp. 46-57 3 Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 4 Borowski v. Canada, [1981] 2 S.C.R. 575

Public Interest Standing 7. Unlike private interest standing, public interest standing may be granted by a court if certain requirements are met. These requirements were determined by the Supreme Court of Canada in a series of cases and finalized by the Court in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 265. At paragraph 37 of the case the Court stated it would exercise its discretion to grant public interest standing if the following criteria were met: a. There is a serious issue raised as to the validity of the legislation in question; b. The applicant must be directly affected by the legislation or have a genuine interest in its validity; and c. There is no other reasonable and effective way this issue could be brought before the court. 8. The first two criterions are easily met. This matter is far from frivolous and, save for the resident disabled component, the applicant is directly and adversely affected by the AA Policy. The inquiry will hinge on whether there are any reasonable and effective ways in which the issue could be brought before this Honourable Court. 9. Drapeau C.J.N.B. described the assessment of the third criterion as:
The answer to the third and last question is a judgment-call shaped by admissions, judicial notice, admissible evidence and common sense.5

10. The only other way the AA Policy could be brought before this Honourable Court would be to wait until a job applicant is denied a job or promotion and see if that individual files a complaint. The following would militate toward finding this neither reasonable nor effective: a. Civil litigation is prohibitively expensive and most people looking for a job are not likely to have the resources to prosecute a complex constitutional challenge; b. Most people with a sense of self-preservation who are seeking a promotion will not want to rock the boat by contesting the AA Policy and being labeled a trouble maker; and c. A job applicant from outside the NWT is almost certainly not in a position to prosecute a civil matter in a NWT court. 11. In commenting on the third criterion, Cory and Iacobucci JJ. stated:
With respect to the third criterion, the only other way the issue could be brought before the Court with respect to the other sections would be to wait until someone is discriminated against on the ground of sexual orientation in housing, goods and services, etc. and challenge the validity of the provision in each appropriate case. This would not only be
5

Morgantaler v. New Brunswick (2009), 306 D.L.R. (4 ) 679 at para. 12

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wasteful of judicial resources, but also unfair in that it would impose burdens of delay, cost and personal vulnerability to discrimination for the individuals involved in those eventual cases. This cannot be a satisfactory result.6

12. The applicant moves for public interest standing. Overview of AA Policy and HRA 13. The AA Policy was adopted in 1988 by way of Commissioner in Council order. Its originally enabling power was the Affirmative Action Order regulation enacted under the former Fair Practices Act (the predecessor to the HRA). 14. The HRA was enacted in 2004 and contained the following provision:
67. (1) Nothing in this Act precludes any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups, including those who are disadvantaged because of any characteristic referred to in subsection 5(1). (2) Any program designed to promote the welfare of any class of individuals that was approved under section 9 of the Fair Practices Act, R.S.N.W.T. 1988, c.F-2, is deemed, for the purposes of subsection (1), to be a program that has as its object the amelioration of conditions of disadvantaged individuals or groups.

15. This provision is awkwardly framed. It does not remove jurisdiction from the Human Rights Adjudication Panel (HRAP). Rather it creates a non-rebuttable presumption as to the bona fides of, inter alia, the AA Policy. It has the same practical effect, save for a few legal peccadillos. 16. The AA Policy is a directive requiring each department to establish an Affirmative Action plan. The beneficiary groups under the AA Policy are as follows: a. Indigenous Aboriginal (P1) Aboriginal from a community based in the present day boundaries of the NWT or Aboriginal from anywhere in Canada if that person has lived in the NWT for half of his or her life. b. Indigenous Non-Aboriginal (P2) Anyone who has lived in the NWT for half of his or her life. c. Resident Disabled Anyone with a disability which has an effect on being able to seek or maintain employment and has resided in the NWT for at least the past twelve months. d. Resident Women Any woman present in the NWT for at least the previous twelve months when applying for a job if the workgroup if men represent seventy percent or more of the employees.
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Vriend v. Alberta, [1998] 1 S.C.R. 493 at para. 47

17. The AA Policy states that an applicant can use only one category. For instance, it is impermissible to gain super priority by being Aboriginal, female and disabled. 18. The GNWT Human Resources Manual in the Affirmative Action Policy/Hiring Process section states: Staffing priority shall be granted to the designated groups specified in the GNWTs Affirmative Action Policy as follows:
Competitions for Management or Non-Traditional Occupations Priority 1 a) Indigenous Aboriginal Persons - Females b) Indigenous Aboriginal Persons - Males Priority 2 Resident Women Priority 3 Indigenous Non-Aboriginal Persons or Resident Disabled Persons No Priority All Other Applicants All Other Competitions Priority 1 Indigenous Aboriginal Persons Priority 2 Indigenous Non-Aboriginal Persons or Resident Disabled Persons No Priority All Other Applicants

19. On its face the Human Resources Manual conflicts with the AA Policy. Since the AA Policy is a statutory instrument, it prevails. This is an argument in the application of the AA Policy and a challenge may successfully proceed through the HRA process. The challenge would be to the application of the policy rather than the policy itself. 20. The applicant is challenging the AA Policy on its face. There is no challenge on the application of the AA Policy before this Honourable Court. It is the intention of the applicant to utilize the application of the AA Policy as a ground of attack against the AA Policy itself should the matter proceed to the HRAP.

Mobility Rights in Canada History and Sanctity of Interprovincial Mobility 21. A dominant intention of the drafters of the British North America Act (now the Constitution Act, 1867) was to establish a new political nationality and, as the counterpart to national unity, the creation of a national economy7. 22. Prior to the advent of the Charter, there was no specific constitutional guarantee for mobility rights of citizens seeking work or a livelihood. However, courts were prepared to characterize certain rights as being fundamental to, and flowing naturally from a person's status as a Canadian citizen. 8 For instance, a British Columbia law barring people of Chinese origin from working in mines was found to be ultra vires the authority of the province9. It was held that provincial interference with a residents right to live and work in the province was thus not permitted.10 23. Barriers to interprovincial mobility are the antithesis of confederation and national unity. Laskin J. stated11:
... to permit each province to seek its own advantage, so to speak, through a figurative sealing of its borders to entry of goods from others would be to deny one of the objects of Confederation, evidenced by the catalogue of federal powers and by s. 121, namely, to form an economic unit of the whole of Canada: see the Lawson case.

24. Prior to the enactment of the Charter, the Supreme Court of Canada routinely reaffirmed mobility rights going beyond the mere transportation of goods. It recognized the right to seek work in any province. It recognized the right to enter and remain in any province. It recognized that barriers erected by provinces could transform Canada into a bunch of enclaves of communities12. 25. It is also worthy to note that the drafters of the Charter felt that mobility rights are worthy of additional protection. Section 33 of the Charter does not cover mobility rights. Section 6 of the Charter 26. Section 6 of the Charter states:
Mobility of citizens 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

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Black v. Law Society of Alberta, [1989] 1 S.C.R. 526 at para. 34 Black, supra., para. 38 Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580 10 Black, supra., para. 38 11 Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689 at p. 717 12 Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887 at p. 919-20 qtd Black, supra., para. 37

Rights to move and gain livelihood (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. Limitation (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. Affirmative action programs (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

27. La Forest J. described section 6 as:


[Section 6 of the Charter], which is not expressed in terms of the structural elements of federalism, but in terms of the rights of the citizen and permanent residents of Canada. Citizenship and nationhood are correlatives. Inhering in citizenship is the right to reside wherever one wishes in the country and to pursue the gaining of a livelihood without regard for provincial boundaries. Under Charter disposition, that right is expressly made applicable to citizens and permanent residents alike. Like other individual rights guaranteed by the Charter, it must be interpreted generously to achieve its purpose to secure to all Canadians and permanent residents the rights that flow from membership or permanent residency in a united country. [My Emphasis]

28. The right to pursue the gaining of a livelihood extends to choice of occupation. La Forest J. stated13:
Denying non-residents access to some fields cannot be condoned, for the purposes of s. 6(2)(b), by the fact that some job positions are still left open to non-residents. The right to pursue this livelihood of choice must remain a viable right and cannot be rendered practically ineffective and essentially illusory by the provinces.

29. As a compromise to accommodate Newfoundland, subsection 6(4) was added to the Charter. This allowed a province to create an ameliorative program for economically or socially disadvantaged groups if the rate of employment for that province was below the rate of employment nationally. 30. The limitations of the scope and coverage of ameliorative purpose programs under subsection 6(4) is much more circumscribed than a similar program under subsection 15(2). Peter Hogg stated14:
affirmative action programs under s. 6(4) will have to be tailored to benefit those individuals who are in fact socially or economically disadvantaged. A general preference for all provincial residents would seem over-inclusive, in that it would benefit the highly skilled and well off as well as the disadvantaged.

AA Policy and Section 6 31. The characterization of a law in the federalism context involves first identifying the matter of the law. A laws matter is its dominant feature. It is not discernable by

13 14

Black, supra., at para. 56 Hogg, Peter. Constitutional Law of Canada (Vol. II), p. 356, note 36 qtd Laskin J.

any single test. Formalistic approaches are discouraged. The inquiry involves a nice balance of legal skill, respect for established rules, and plain common sense.15 32. In order to establish the dominant feature of the AA Policy, the entire policy must be read in context with its stated intent. Although it has a stated ameliorative purpose, the policy, on its face, provides preference to all NWT residents with longevity regardless of race or existing disadvantage. All beneficiary grounds require some degree of longevity in the NWT. It can be said that the dominant purpose and effect of the AA Policy is to provide regional preference. 33. Section 6 allows for some residency requirements or preference. First, provinces may set reasonable residency requirements for eligibility to receive publically provided social services. Second, laws of general application or practice unless the law discriminates primarily on the basis of province of residence or previous province of residence. Third, any affirmative action program if the rate of employment for the territory is lower than the rate of employment nationally. Law of General Application 34. The only live issue under subsection 6(3) is whether the AA Policy is a law or practice of general application. Is it an ameliorative purpose program with secondary, incidental effects on province or territory of previous residence? Or, is it a colourable or overly broad ameliorative purpose program which primarily affords priority to every long-time NWT resident, regardless of historical or existing disadvantage? 35. Having demonstrated that the substance of the AA Policy is providing preference to NWT residents, it is submitted that the AA Policy cannot be defended under subsection 6(3)(a). Ameliorative Purpose Program 36. Since the NWT rate of employment is higher than that of the national average, subsection 6(4) is not available. 37. Although it is a section 1 issue, it is also worth noting that the AA Policy is not a true ameliorative purpose program. The policy provides unqualified priority to all longtime NWT residents without regard to race or disadvantage. Its substance is to
15

R. v. Morgentaler, [1993] 3 S.C.R. 463 at paras. 22-4 per Sopinka J.

provide regional preference, with a distant secondary purpose of remedying disadvantage. Section 1 38. A party defending the impugned law bears the onus of demonstrating that the Charter infringement is demonstrably justified in a free and democratic society. The main passage giving rise to the four criteria test has taken on some of the characteristics of a holy writ, and is as follows16:
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom [] The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves a form of proportionality test [] Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in the first sense, should impair as little as possible the right or freedom in question [] Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance.

39. In summary the four criteria test is as follows: a. The law must pursue an objective that is sufficiently important to justify limiting a Charter right. b. The law must be rationally connected to that sufficiently important objective. c. The law must impair the right no more than is necessary to accomplish the objective. d. The law must not have disproportionally severe effects on persons to whom it applies. Pressing and Substantial Objective 40. Determining the objective of a law is a task of considerable difficulty. The intention of the legislators in enacting the law may be unknown. However, since the determination of an objective in the section 1 context is to determine if the Charter

16

R. v. Oakes, [1986] 1 S.C.R. 103 at pp. 138-9

infringement can be justified, the statement of the objective should relate to the infringement of the Charter rather than other goals17. 41. It is a matter of settled law that one cannot use one part of the constitution to override another part of the constitution. Since amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged is already addressed and qualified under subsection 6(4), this cannot serve as a qualifying pressing and substantial objective. 42. Having demonstrated that the AA Policy has as its object the granting of preference to all long-time NWT residents, regardless of race or disadvantage, it is submitted that the AA Policy will not pass the first step of the Oakes test. Rational Connection 43. Since the AA Policy grants priority to all NWT long-time residents, the ameliorative effects for disadvantaged groups, both Aboriginal and non-Aboriginal, will be significantly diluted. It is presumed that the privileged among Aboriginals and nonAboriginals will be best suited to reap the benefits of the enhanced priority status under the AA Policy. 44. It is submitted that the AA Policy is not rationally connected to any acceptable pressing and substantial objective. Remedy 45. Severing the residency requirement would reverse the effect of the AA Policy. It would in effect provide southerners with priority. Since the population of Aboriginals, disabled persons and women working in non-traditional fields are several times higher in the south, the AA Policy would result in more of these individuals being hired. 46. Since severance is not an appropriate remedy, the only alternative is nullification. 47. It is respectfully submitted that the AA Policy be declared of no force or effect pursuant to subsection 52(1).

17

Hogg, supra., p. 130; For example, in R. v. Andrews, [1989] 1 S.C.R. 143, the Supreme Court of Canada unanimously found a s. 15 infringement, but disagreed on the s. 1 analysis. The majority preferred a low-level objective which related to the infringement rather than the high-level objective (i.e. restricting the practice of law to Canadian citizens rather than ensuring those who practice law are properly qualified.

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Subsection 67(2) of the HRA 48. Subsection 67(2) of the Charter does not entirely insulate the AA Policy from the ambit of the HRA. First, the application of the AA Policy may be challenged. Second, the AA Policy itself may, technically, be considered, but subsection 67(2) creates a non-rebuttable presumption that the AA Policy is a bona fide ameliorative purpose program, and therefore shielded from review under subsection 67(1). 49. However, subsection 67(2) does in a practical sense insulate the policy itself from scrutiny under the HRA. This would force anyone wishing to challenge the AA Policy to lodge a complex, costly Originating Notice in the Supreme Court of the Northwest Territories, something which is out of reach for the average citizen, and almost certainly the average job-seeker. Subsection 67(2) and Mobility Rights 50. Subsection 67(2) infringes subsection 6(2)(b) in a more insidious manner than the AA Policy does. Unlike the AA Policy, no rational ameliorative purpose whatsoever is served by having the provision. Rather it serves exclusively to add substantial barriers to non-beneficiaries of the AA Policy, mostly new or non-residents. 51. On a section 1 analysis, there is no reasonable possibility that the respondent would pass the first step of the Oakes test. At best the objective of subsection 67(2) is a cost-saving measure. While the Supreme Court of Canada has recently held that budgetary concerns can be a pressing and substantial objective, the Court stated that the threshold is far higher. The party seeking to uphold the law must cogently demonstrate the potential for an extreme fiscal crisis18. Subsection 67(2) and Section 15 Section 15 52. There has been a winding course of judicial interpretation of section 15 of the Charter. However, the most recent definition of discrimination is as follows19: a. The impugned law imposes on the claimant a disadvantage (or withholds an advantage) in comparison to other comparable persons;

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19

For example, see Newfoundland (Treasury Board) v. Newfoundland Assn. of Public Employees, [2004] 3 S.C.R. 381 Withler v. Canada, [2011] S.C.J. No. 12 (Unreported) at para. 29-31

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b. The disadvantage is based on a ground listed in or analogous to a ground listed in section 15; and c. The disadvantage also constitutes an impairment of the human dignity of the claimant. 53. It is evident that subsection 67(2) creates a disadvantage to the applicant. Instead of having access to the free, simple HRA process, the applicant is required to prosecute the matter before this Honourable Court and risks costs consequences, something which is a rarity in HRA proceedings. 54. The issue is whether it is based on an enumerated ground. The only complete nonbeneficiaries of the AA Policy are able bodied, non-Aboriginal men. Member of this group are most adversely affected and would presumably be most interested in seeking redress under the HRA. Therefore there is no single enumerated ground. It is based on an intersection of race and sex. 55. The search for a comparator group using the mirror comparison group method is unhelpful. McLachlin C.J. and Abella J. stated20:
It is unnecessary to pinpoint a particular group that precisely corresponds to the claimant group except for the personal characteristic or characteristics alleged to ground the discrimination. Provided that the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to the second step of the analysis. This provides the flexibility required to accommodate claims based on intersecting grounds of discrimination. It also avoids the problem of eliminating claims at the outset because no precisely corresponding group can be posited. [My Emphasis]

56. It should be recognized that different groups face discrimination differently. For instance, sexual harassment and pay equity are gendered while racial profiling has a disproportionate effect on certain ethnic groups. Legislative impediments to access to human rights remedies would be constitutionally suspect21. Discriminatory? 57. Not all legislative distinctions are discrimination within the meaning of section 15. There are a number of contextual factors to consider before a court can find a legislative distinction contrary to section 15. Although the existence of historical disadvantage strengthens a claim, it is clearly not necessary22. However, it should

20 21

Withler, supra., at para. 63 For example, in Newfoundland (Treasury Board) v. N.A.P.E., supra., the Court found that restrictions on pay equity payments infringed section 15 of the Charter 22 For example, in Trociuk v. British Columbia, [2003] 1 S.C.R. 835 the Supreme Court of Canada found in favour of a section 15 claim made by a single father, a historically privileged group

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be recalled that the group, able bodied, non-Aboriginal men, include many historically disadvantaged groups such as non-indigenous Aboriginals, visible minorities, sexual minorities, religious minorities and recent immigrants. 58. Subsection 67(2) effectively disregards the needs of a large, identifiable (in the context of the NWT) groups of people. Although intent is not required to prove discrimination, it certainly strengthens the claim. Subsection 67(2) was at best a cost-saving measure, but more likely a measure to create significant road-blocks against any outsiders who would seek to challenge the AA Policy. Costs 59. There are special costs rules in public litigation. Originally the rule was that the claimant was entitled to costs if successful and, if the matter was prosecuted in good faith, liable to no costs if unsuccessful23. This has evolved to the claimant being entitled to advance costs if certain circumstances exist24. 60. This matter is of vital public importance. The ambiguity of the constitutionality has caused some uncertainty and resentment against the AA Policy. Prosecution of this matter was time-consuming and costly. Moreover the applicant had to utilize a great deal of annual leave to pursue this matter diligently.

23 24

Allman v. Northwest Territories, [1983] N.W.T.R. 231 For example, see R. v. Caron (2011), 329 D.L.R. (4th) 50

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Order Sought 61. It is respectfully submitted that this Honourable Court, a. Grant the applicant public interest standing; b. Declare the AA Policy of no force or effect pursuant to subsection 6(2)(b) of the Charter and subsection 52(1) of the Constitution Act, 1982; c. Grant the applicant costs in an amount which reflects the preparation and prosecution of the matter as well as disbursements. 62. Or, in the alternative, it is respectfully submitted that this Honourable Court, a. Grant the applicant public interest standing; b. Declare subsection 67(2) of the HRA of no force or effect pursuant to subsection 6(2)(b) of the Charter and subsection 52(1) of the Constitution Act, 1982; c. Grant the applicant costs in an amount which reflects the preparation and prosecution of the matter as well as disbursements.

ALL OF WHICH IS RESPECTFULLY SUBMITTED DATED THIS 24th Day of May, 2011

_____________________ William L. Turner

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IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: WILLIAM LEONARD GEORGE TURNER -andCOMMISSIONER OF THE NORTHWEST TERRITORIES

BRIEF

William L. Turner 5450 52nd Street Yellowknife, NT X1A 3K1 Tel: (867) 445-1116 Email: williamturner83@hotmail.com

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