Charter s. 36 vs abortion

Victoria’s first major public Charter rights debate proceeds apace, with earlier threats of hospital closures being augmented by threats of mass retirement and immigration of doctors in response to clause 8(1)(b) of the Abortion Law Reform Bill 2008:

8(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must…  (b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

But the Weekend Australian tells of a different sort of threat:

It is understood Catholic Health Australia, which has already threatened to withdraw medical services from its 15 hospitals in Victoria, will challenge the legal validity of the most contentious provision in the abortion bill – forcing doctors with a conscientious objection to abortion to refer patients elsewhere for a termination. It is believed the upper house MPs who will vote on the bill, after it passed comfortably through the lower house a fortnight ago, will be warned against supporting the proposed legislation because the legal status of the bill is uncertain. The nub of Catholic Health Australia’s argument is that mandating doctors to act a certain way in their medical practice is in breach of the Victorian Charter of Human Rights. The charter is a set of human rights, freedoms and responsibilities protected by law. This would be the first challenge to the charter since it was introduced in 2006.

I assume that this ‘challenge’ to the legislation is actually a reference to the procedure on Charter s. 36(2):

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

Contrary to the suggestion in the newspaper article, such a challenge could not be to the ‘legal validity’ of the law (once enacted):

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made

Instead, the sole ‘legal effect’ of such a declaration is to require Morand to make a statement to the Parliament:

37 Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must- (a) prepare a written response to the declaration; and (b) cause a copy of the declaration and of his or her response to it to be- (i) laid before each House of Parliament; and (ii) published in the Government Gazette.

The benefits (if any) of a declaration are extra-legal, including a possible political win and (perhaps) a plea in mitigation for anyone facing professional censure or other action for breaching the referral rule.

But that assumes that such a declaration will be given. Putting aside the substantive issue of whether or not clause 8(1)(b) is compatible with Charter s. 14, any ‘challenge’ using s36(2) faces some significant procedural obstacles. Continue reading

The (Charter of) Rights Mooting Competition

This, the second year of the Charter, is also the second year of the Castan Centre’s Charter of Rights Mooting Competition. Like almost everyone, they drop the ‘and Responsibilities’. And perhaps for good reason. Whereas last year, Monash beat Victoria, this year both the finalists were from my law school. I’ve no connection to the competition myself – the point person at MLS is John Tobin – and unfortunately I had to miss this year’s final, due to another engagement. Nor have I had any contact with the mooters, though I know that one of them sometimes reads this blog. (Indeed, my mooting experience at law school was pretty negative. My team lost all its moots at the Jessup Moot and I’m still smarting about one judge who praised one of my opponent’s argument that the defendant country had automatically given the ICJ merits jurisdiction simply by turning up as a ‘very original’ argument. There. Now, surely, I’ve finally gotten over that one! Sigh. Still not…)

Anyway, the Castan Centre competition is clearly a terrific idea, with the capacity not just to educate the mooters themselves, but maybe even the judges about the Charter.  But, because this is Charterblog, I’ve got some concerns too. I only just realised that the mooting problems (from last year and this year) have been posted online. Last year’s problems look terrific, each requiring competitors to discuss ‘issues relating to the Charter’ about the following scenarios:

  •  A Sikh prisoner who had his turban, correspondence and cell searched by guards
  • Student protesters who clash with Victoria police while protesting an immigration detention centre
  • A privately run nursing home facing conversion into a backpackers’ resort.

These questions strike me as raising a great mix of issues about the rights in Part Two and the operative provisions in Parts One and Three of the Charter. The final, in particular, expressly involved a real statute, presumably raising all sorts of interesting issues about the interpretation and conduct mandates.

However, the style has changed for this year’s competition. The three problems are much longer and more convoluted, mixing some realistic situations (notably the final problem, which inititally resembles real life events in the US where children were seized from a polygamist compound) with some pretty bizarre scenarios (Finn twin sisters – Fwisters? – protesting against teaching methods; a vegetarian caught up in the quarantining of a country town stricken with a cow-based disease.) This is a matter of taste, of course, but I don’t much like silly scenarios. Indeed, it’s not really clear to me why you wouldn’t just set real cases: a creepy doctor trying to avoid being disbarred?; a defence company seeking an EEO exemption?. How about a broadcaster trying to show a controversial docudrama?

But that isn’t my main concern. Rather, it’s the particular issues that the competitors were asked to address. Continue reading

Underbelly: The Director’s Cut

The judgment in X v General Television Corporation Pty Ltd [2008] VSC 344 is now on Austlii. However, just like the version of Underbelly that Victorians have at last been able to watch, it’s a trimmed down ‘authorised for publication’ version with annoying breaks:

4 [Paragraphs 4 to 12 inclusive have been deleted from this version.]

18 [Paragraphs 18 to 23 inclusive have been deleted from this version.]

Alas, we can’t go interstate to find out what’s in the mystery paragraphs. Although, at least that means that there’s some point to all the censorship, unlike the weird pixellation of Underbelly’s Victorian edition. Or is there? Tthe sole purpose of the trimming is so that we don’t find out who X is. The judgment does reveal that X is facing ‘criminal trials’ (plural) and that one such trial is for the ‘alleged murder of Lewis Moran’. (I dunno if ‘alleged’ is the right word. After all, Evan Goussis is currently serving a sentence for that very murder. Or maybe he’s been secretly acquitted?)  Vickery also excludes half of Victoria’s population by referring to ‘his murder charge’. So, not Zarah Garde-Wilson, I guess. Surely, when that trial comes about, the jury are going to work out the mystery? Or are there dozens more folks lined up to go on trial for killing poor old Lewis?

Alas, what is also left secret is exactly why Justice Peter Vickery ordered that the first five episodes of Underbelly could be shown, but not the sixth. He does reveal that what Victorians have got to see is the Director’s cut:

A “Victorian” edited version of the program has been produced to satisfy concerns expressed by the Jeremy Rapke QC, Victorian Director of Public Prosecutions. The Victorian version is proposed to consist of an edited version of episodes 1-6 only.

So, Rapke – he of the media release that threatened prosecution for anyone who showed any part of Underbelly whatsoever – has indeed decided that over a third of the series is AOK. Perhaps what was prejudicial to Evan Goussis isn’t prejudicial to X. Or maybe Rapke is learning on the job as Victoria’s chief censor.

But Vickery had a problem with episode 6:

I find that the broadcasting of episode 6 of the television series Underbelly in Victoria, prior to the trial of X on his murder charge in relation to the death of Lewis Moran would constitute a contempt of court. In my opinion, the making of the necessary prohibition order is necessary to ensure a fair trial for the accused X in relation to this charge. As the Court of Appeal said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors: The test for liability for sub judice contempt is whether, as a matter of practical reality, the publication is shown to have a tendency to prejudice or embarrass particular legal proceedings. I find that there is a real and definite tendency for episode 6 of the edited Victorian series to prejudice the trial of X and that a broadcast on Channel 9 in Victoria prior to X’s trial in relation to the death of Lewis Moran would have this effect.

Of course, we can’t know what is wrong with episode 6 (unless we buy the DVD from interstate.) But isn’t it a little weird how the very case that Vickery quoted here had already ruled that the first three episodes couldn’t be shown at all prior to Goussis’s trial:

The first matter to be considered is whether, as is submitted by the applicant, no prejudice could arise by reason of the broadcast of episodes 1 to 3 of Underbelly. Episode 1 is entitled ‘The Black Prince’ and involves matters relating to one Alphonse Gangitano. It is set during the year 1995. The period of time to which the episode refers is thus temporally separate from the matters connected to the trial. However, B and two of his sons are named and represented by actors in episode 1, as is D. This episode commences to describe the relationships which each of those parties has to each other and to other persons. Those relationships are portrayed as being relevant to the events which lead in due course to the death of B. Likewise in episode 2, B and members of his family and D are named and portrayed by actors. F is represented in the program by an actor but not named and his face is pixelated. Similarly, episode 3 is devoted principally to the family of B and their association with other alleged members of the ‘underworld’. It also refers in some detail to the alleged association between D and F.

Clearly the relationships between the deceased and members of his family and D and F, and the criminal activities in which they are portrayed engaging in as portrayed in episodes 1 to 3 are relevant to the manner in which the prosecution puts its case against A. In our view, taking into account the proximity of the trial and that fact, the judge rightly considered that the dramatic portrayal of matters of mixed fact and fiction which directly relates to the trial of A was a matter of most serious concern. In this regard it must be remembered that it was the trial judge who was to be burdened with the obligation of providing appropriate directions to both a prospective jury panel and to any jury finally selected. In our view her discretion in relation to episodes 1 to 3, as with her discretion in relation to the other episodes, did not miscarry.

I wonder if Victorian edition that Channel Nine offered then is all that different from the Rapke edition? Is the difference in orders really about proximity to the trial? Or is the truth that there are some varying views with the Supreme Court about when it’s appropriate to success? And is that level of variance acceptable? Or perhaps the difference this time is that Vickery actually considered the Charter. Continue reading

Brennan (and Hulls?) on abortion

Frank Brennan writes on Charter s. 48 in Eureka Street. Or does he?:

If Victoria is to legislate abortion on demand, there is a need to consider whether all health professionals ought to be conscripted into such a regime. Has the legislature got the balance right here? Presumably the legislators assume the majority of health professionals will have no ethical or moral objection. The issue is whether the minority of health professionals who do have such objections should be forced to act against their conscience.

One would have thought that the Victorian Parliament, armed with its freshly minted Charter of Rights and Freedoms [sic – sigh, that’s Canada’s upbeat name. Victoria’s isn’t so cheery!],  would have the appropriate machinery at hand to find that balance. After all, the Charter guarantees freedom of thought, conscience, religion and belief. The Charter does permit parliament to override prescribed freedoms in rare circumstances. However Professor George Williams and his fellow proponents of the Charter were ‘strongly of the view that it would be inappropriate to use the override clause to sanction a breach of important rights such as freedom of conscience, thought and religion’. They did not tell us that such rights could be overridden without need for an override or even without need for parliament to consider the impact of proposed legislation when those rights could ‘interfere’ with the right to abortion on demand….

Section 48 provides that ‘Nothing in this Charter affects any law applicable to abortion or child destruction’. It was included in the Charter to accommodate the concerns of Professor Williams and his colleagues that the Charter not purport to resolve the question of when life begins for the purposes of defining the right to life. The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’ They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

While Brennan is quite correct in characterising Charter s. 48 as an unlimited form of override for laws like clause 8 of the Abortion Law Reform Bill, he’s wrong to blame George Williams and his Human Rights Constultation Committee.

Charter s. 48 did not appear in the Committee’s draft bill. Instead, they followed the ACT approach of limiting the right to life (but no other rights) to the born. However, the unnamed folks who I refer to in this blog as the ‘meddlers’ – the ones who changed the Committee’s draft before it went to Parliament,  invariably for the worse – deleted the limitation on the right to life and instead inserted the risible Charter s. 48. The current one-sided rights argument being won by the pro-life movement may be what is now being reaped from the meddlers’ sowing.

Rob Hulls’s surprise decision to vote against the bill may provide a clue as to who the meddler was on this occasion. He hasn’t revealed the reasons for his conscience vote, with Brumby labelling it a private matter. I’m dubious about that claim: conscience votes are arguably the only reason for voters to pay attention to who they are electing, rather than the party he or she belongs to. Not knowing what Hulls’s objection to the bill was makes it impossible to for his electors to guess how he may vote if the issue or a related one returns to parliament in the future. But maybe the mysterious appearance of Charter s. 48 in the Charter bill, combined with a dropping of the Committee’s gloss on the right to life, shows what Hulls was worried about.

Was Hulls unhappy with denying a key human right to the unborn? This theory gets support (of sorts) from the parliamentary debate on the bill.

Continue reading

An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:

(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria…

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear. Continue reading

Do hospitals have rights?

The Charter has made the front page of the Age twice in two days, both curiously on the issue of abortion, despite Charter s. 48, which provides that nothing in the Charter ‘affects any law applicable to abortion or child destruction.’ While the Minister took the view that Charter s. 48 removes any obligation to provide a statement of compatibility (and hence none was provided), SARC questioned whether Charter s.48 has any impact on the debate over bills, which aren’t laws and aren’t affected by the Charter.

Possibly to the surprise of some, the Charter has been raised almost exclusively by the pro-life side of the debate. They’ve picked their issue cleverly, focusing not on the abstract debate about whether or not foetuses have human rights but instead on Charter s. 14:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including- (a) the freedom to have or to adopt a religion or belief of his or her choice; and (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Catholic Archbishop Denis Hart wrote, in a ‘pastoral letter’:

The Bill is an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs. It makes a mockery of the Victorian Charter of Human Rights and the Equal Opportunity Act in that it requires health professionals with a conscientious objection to abortion to refer patients seeking an abortion to other health professionals who do not have such objections. It also requires health professionals with a conscientious objection to abortion to perform an abortion in whatever is deemed an emergency. The Bill is clearly intended to require Catholic hospitals to permit the referral of women for abortions…

Catholic hospitals and the large number of Victorians they serve are also in a vulnerable position. Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions. This Bill poses a real threat to the continued existence of Catholic hospitals. Under these circumstances, it is difficult to foresee how Catholic hospitals could continue to operate maternity or emergency departments in this state in their current form.

In an op-ed in today’s Age, Liberty Victoria Vice-President Anne O’Rourke responds to this Charter claim:

The Victorian Charter of Human Rights and Responsibilities does indeed guarantee a right to freedom of thought, conscience, religion and belief, as Archbishop Hart points out. There are two errors in his claim, however. The first is that only human beings, not hospitals or related entities, have human rights

O’Rourke here relies on Charter s. 6(1), which provides that ‘[o]nly persons have human rights’. This provision reflects traditional human rights advocates’ dislike of corporations. Indeed, the Victorian Law Reform Commission, whose recommendations are responsible for the Abortion Law Reform Bill’s ‘conscience clause’, expressly adopted this prejudice as a reason to reject the approach taken in Western Australia of providing every ‘person, hospital, health institution, other institution or service’ with a conscience clause. The VLRC wrote:

As freedom of conscience is generally understood to be held by individuals, the conscience
provision should not extend to corporations. This is consistent with existing conscience
provisions in other Victorian laws. The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.

What are those ‘perverse outcomes’? A footnote explains:

See, eg, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199. Free speech extends to commercial speech—tobacco advertising laws contravened freedom of expression. There is no reason to extend the provision to organisations because the new law of abortion will not establish a positive duty to perform abortions.

Yes, that old furphy, the supposedly controversial extension of freedom of expression to commercial – not corporate – speech. Not only was the Supreme Court of Canada’s decision in that case entirely correct – tobacco sellers were barred from saying that required health warnings were from the government, not them; and the Canadian government declined to provide any evidence for why less broad bans would fail to achieve the desired effect; remedying both defects led to the Supreme Court upholding the new law – but it is, at best, an argument for restritcing free expression, not other rights. The real gripe of Australian human rights advocates with the Canadian case, and corporations in general, isn’t any analysis of the decision – there’s NEVER anything more than a footnote – but anger that the Canadian government’s shoddy lawyering gave the anti-Charter mob a free kick. While the rejection of corporate human rights is sometimes belatedly justified by their supposed power (and hence the potential for them to ‘abuse’ human rights), that objection is scarcely applicable to all non-human entities. Since when have hospitals and health providers been deep pocketed abusers of legal rights?

O’Rourke’s reliance on the limitation of human rights to humans is transparently specious in this case. No-one’s claiming that the hospitals (e.g. the building?) have a freedom of conscience. Rather, Hart’s claim is made on behalf of the many human beings with a stake in such hospitals, including donors, managers, employees, patients and Catholics in general. Indeed, Charter s. 14(1)(b) expressly refers to people demonstrating their believes ‘as part of a community’. O’Rourke (like the VLRC) does the pro-choice side an enormous disservice by relying on a miserly technical knockout, especially one whose flaws are transparent to lay people. Liberty Victoria ought to disown this risible use of Charter s. 6(1).

O’Rourke is on much stronger ground in relation to her second argument, based on Charter s. 7(2): Continue reading

The Thirty-Eight Steps

I’m not done yet with Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, arguably the most significant Charter judgment to date (and the most flawed). In this post, I look at the overall approach Hollingworth J adopted to analysing a Charter s. 38(1) claim:

I accept the Solicitor-General’s suggestion that in analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (the justification question)

In my previous posts, I said that, while Hollingworth completely blew the first question, she nevertheless correctly (if overly tersely) answered the second question. But was that the right question to ask? I don’t think so. Moreover, Pamela Tate’s list omitted some important questions too.

Here are the questions Hollingworth should have asked (in this or any other case involving a decision made under a Victorian statutory provision):

  1. Did the decision or its consequences engage a Charter right? (the engagement question)
  2. If so, did the public authority’s decision either (a) limit a Charter right? (b) fail to do something required by a Charter right? (c) involve a failure to give proper consideration to a Charter right? (the compatibility question)
  3. If so, was making a different decision or giving proper consideration to that Charter right reasonable in light of the governing statutory provision? (the statutory defence question)
  4. If not, is the statutory provision a demonstrably justified and reasonable limit on Charter rights? (the reasonable limits question)
  5. If not, is there an alternative interpretation (consistent with the provision’s purpose) that would make it reasonable to make a different decision or give consideration? (the interpretation question)

Sabet deserved an answer to each of these questions, but instead he only got answers (of sorts) to Tate’s three questions. What did they leave out? Continue reading