Free Speech to criticize our federal politicians was removed by the Canadian Liberal Party and the Supreme Court of Canada upheld it ... not so much in the good old USA:

Justice Scalia began his concurrence by writing:

"A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lese majesteé being a serious crime in Morocco) as follows: ‘I'm not a revolutionary, I'm just defending freedom of speech . . . I never said we had to change the king -- no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?'

"Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running."

Ouch.

I agree ... Ouch.

Of course the  Supreme Court of the United States need not look so far a Moroco, Canada is right next door. We made speech by individuals illegal for the full run of a Federal election campaign. Worse, the Supreme Court of Canada said that the law was a necessary infringement to our freedom of expression, thus turning our freedom of expression into a privilege and not a right. However, as with McCain Feingold in the USA, the Canadian Election Spending Legislation probably will not hold up to judicial scrutiny once someone is actually charged under the act.

(Via Instapundit ... cross-posted at The London Fog)

The scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter.

139 The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person’s rights. It follows that the IRPA’s procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter. I would declare the procedure to be inconsistent with the Charter, and hence of no force or effect.

140 However, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the “reasonable” status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.

141 The second defect is found in s. 84(2) of the IRPA, which denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release. Counsel for the ministers submitted in oral argument that if this Court were to find that s. 84(2) violates the Charter, the appropriate remedy would be to strike s. 84(2) and read foreign nationals into s. 83. This is a good first step, but it does not provide a complete solution, since s. 83 deals with detention review only until the certificate has been determined to be reasonable, whereas s. 84(2) deals with detention review after it has been determined to be reasonable. Striking s. 84(2) would therefore leave no provision for review of detention of foreign nationals once the certificate has been deemed reasonable.

142 Accordingly, I conclude that the appropriate remedy is to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words “until a determination is made under subsection 80(1)” from s. 83(2).

(Cross post @ The London Fog)

The Supreme Court of Canada (SCC) has, for reasons unknown, granted leave to appeal  to the Crown in the R v. A.M. case. The facts of the case were summed up by Armstrong J. of the Ontario Court of Appeal as follows:

[1]   On November 7, 2002, three police officers attended St. Patrick’s High School in Sarnia and, with the assistance of a “sniffer” dog, conducted a warrantless and random search of the school.  The attendance of the police on that particular day was not at the request of school authorities.  The principal and staff were unaware that the police were planning to attend until they arrived in the school.

[2]               As a result of an indication from the sniffer dog, the police were directed to the backpack of A.M.  When they searched the backpack, they found that it contained a quantity of marijuana and psilocybin.  A.M. was charged with possession for the purpose of trafficking in respect of both drugs.

[3]               At trial, counsel for A.M. moved to exclude the evidence of the drugs found in the backpack on the basis that the search by the police was unreasonable and therefore offended s. 8 of the Canadian Charter of Rights and Freedoms.  The trial judge, Justice G. M. Hornblower of the Ontario Youth Justice Court, accepted the submissions of counsel and excluded the evidence related to the drugs under s. 24(2) of the Charter.  In the result, A.M. was acquitted of the charges.

[4]               The Crown now appeals the acquittals on the basis that the trial judge erred in finding a breach of s. 8 of the Charter and in excluding the evidence under s. 24(2) of the Charter.

At trial the judge had found as follows:

[21]  The trial judge found that there were two searches.  The first search was the search conducted with the assistance of the sniffer dog; the second search was the search of the backpack of A.M.  The trial judge concluded that neither search was reasonable.

[22]         Finally, the trial judge concluded that the search was a police search in the guise of a search by school authorities.  He noted that, even if it had been a search by school authorities, the school authorities had no right to conduct such a search in the absence of reasonable grounds to believe drugs could be found.

[23]         The trial judge excluded the evidence obtained as a result of the police search under s. 24(2) of the Charter.  In his consideration of the application of s. 24(2) of the Charter the trial judge said:

While this case centres around the rights of A.M., the rights of every student in the school were violated that day as they were all subject to an unreasonable search.  This search was unreasonable from the outset.  It is completely contrary to the requirements of the law with respect to a search in a school setting.  To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure.  It is effectively saying that persons in the same situation as A.M. have no rights.  Such a finding would, to my mind, bring the administration of justice into disrepute notwithstanding the other factors I have alluded to.

Section 8 of the Charter reads as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

The evidence was excluded under section 24(2) of the Charter. Section 24 of the Charter reads:

   (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Ontario Court looked at the reasonableness of the sniff search and concluded:

[51]         The search in this case was warrantless.  The Supreme Court of Canada in Hunter, et al. v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145 at 161 held that a warrantless search by the police is prima facie unreasonable.  The Crown, who seeks to justify a warrantless search, has the burden of rebutting the presumption of unreasonableness.  In Collins, the Supreme Court held at p. 278 that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”

[52]         I pause here to observe that, in respect of a search by school authorities (on reasonable grounds), the same presumption does not apply: see M.R.M. at para. 50.  However, I have already said that, in my opinion, this was a warrantless search by the police and therefore the presumption in Hunter v. Southam applies.  As Cory J. said in M.R.M. at para 56:

The usual standard, requiring prior authorization in the form of a warrant which is based upon information which provides reasonable and probable grounds, will continue to apply to police and their agents in their activities within a school. The modified standard for school authorities is required to allow them the necessary latitude to carry out their responsibilities to maintain a safe and orderly school environment. There is no reason, however, why police should not be required to comply with the usual standards, merely because the person they wish to search is in attendance at an elementary or secondary school.

The court then concluded that the detention of the students for 1-2 hours was not reasonable, but that this was not as egregious as the warrantless search:

There was no credible information to suggest that a search was justified.  There were no reasonable grounds to detain the students.  As Laskin J.A. said in R. v. Calderon (2004), 188 C.C.C. (3d) 481 at para. 69 (Ont. C.A.): “An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience.”

[58]         The Supreme Court of Canada has held that there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence.  This position was articulated by Iacobucci J. for the majority of the court in R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 at para. 34:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[59]         Quite apart from the detention of the entire student body, of more significance is the unauthorized warrantless random search itself.

[60]         In my view, the Crown has failed to rebut the presumption that the search was unreasonable.  Even if the presumption of unreasonableness did not apply, it is my opinion that there were no grounds upon which to justify a random search of the kind that was conducted in this case.

The evidence was properly excluded.

The idea that the police can collude with  school administrators to detain students while random searches are conducted by the police may sound great to some overly protective parent who has forgotten his own childhood. For me, it just does not pass the smell test.

(Cross post: The London Fog)

The Supreme Court of Canada has brought down a Maritime law case (Isen v. Simms) that removes the limitation of liability for ships that are being transported on dry land. Will this apply to a ship in dry dock?

Here are the headnote facts:

After a day of recreational boating on a lake, S and I removed the boat from the water on a trailer and prepared it for transport on the highway in a parking lot near the water. I, the owner of the boat, was stretching a bungee cord over the engine cover to secure it when the cord slipped from his grasp and hit S who suffered an eye injury. S and his wife brought a personal injury action for damages  totalling $2.2 million in the Ontario Superior Court.  I denied liability and also applied to the Federal Court for a declaration that, in the event he was found liable,  his liability would not exceed $1 million pursuant to s. 577 of the Canada Shipping Act.  The Federal Court and the majority of the Federal Court of Appeal both held that the claim was a maritime law claim and was subject to the limitation of liability set out in s. 577.

Held:  The appeal should be allowed.

The Court held:

  However, I am unable to agree with Nadon J.A. that the securing of the engine cover was a part of the removal process.  The actions of the respondent had nothing to do with navigation of the boat on water and everything to do with preparing the boat to be transported on Ontario’s highways.  Once the boat was being secured for highway transport it was no different than any other type of cargo that is transported on the highway.  It is the provincial legislatures that have jurisdiction over the carriage of cargo on provincial highways. The fact that the cargo is a boat does not bring under federal law a matter that is, in pith and substance, subject to provincial law. 

27                           Bungee cords or other devices are often used to secure cargo prior to road transport to ensure the cargo is not damaged during road transport and does not pose a hazard to other users of the road.  The law concerning the standard of care and liability of the respondent in this situation should be that applied to other users of Ontario highways who make preparations to transport some form of cargo.  Indeed, it is the other users of the road who may collide with, or otherwise be affected by, a trailered boat and/or non‑secured cargo while on the highway.  It would be anomalous that provincial law would apply to the carriage of other goods on Ontario highways, but that maritime law would apply when the goods are a boat.

28                           I am in substantial agreement with the analysis of Décary J.A. which he summarized at para. 98 of his dissenting reasons:

The accident occurred on land.  The injury was caused on land by a person who was neither on the boat nor in the water.  There is no contract for carriage of goods by sea.  There are no goods at issue.  Nothing has happened on water which could be said to be directly or even indirectly related to the accident.  There is no issue as to the seaworthiness of the ship, the issue at best being one as to the roadworthiness of a boat being prepared on land for road transportation.  There are no in rem proceedings.  There are no concerns of good seamanship.  There are no specialized admiralty laws, rules, principles or practices applicable.  The accident has nothing to do with navigation nor with shipping.  There is no practical necessity for a uniform federal law prescribing how to secure the engine cover from flapping in the wind when a pleasure craft is transported on land in a boat trailer.  The sole factor possibly connected to maritime law is that the pleasure craft had just come out of the water and was still being secured on the trailer when the accident happened.  This, clearly, is not enough to constitute an integral connection with navigation and shipping and an encroachment of civil rights and property.  [Emphasis in original.]

Pot activist Grant Wayne Krieger had his conviction overturned by the Supreme Court of Canada in a 7-0 decision. It is no wonder. Here is The Honourable Mr. Justice Fish recalling part of the charge to the jury:

I begin by recalling the terms used by the judge in instructing the jury as to the available verdicts.  As I have already mentioned, he directed the jurors “to retire to the jury room ... and ... to return to the court with a verdict of guilty”.  To the judge himself this direction left no other course open to the jury.  When two jurors later asked to be excused, the judge stated, in the jury’s presence:

I have a matter that the jury raises.  It is apparent that some of the members either didn’t understand my direction this morning, that is that they were to return a verdict of guilty . . . or they refused to do so.

Fish J. then went on:

After the jurors had been directed by the judge to retire and return to court with a guilty verdict, they returned instead with a request: They asked for a copy of the oath they had taken upon assuming their duties as jurors.  They had sworn by that oath  to presume the accused innocent throughout the trial, which would end with their verdict. Yet now, even before they could begin to deliberate, they were directed by the judge not just to presume — but in fact to conclude — that the accused was guilty as charged.  In that light, the jurors were understandably concerned to ascertain the nature and consequences of their oath.

 Some time after receiving a copy of their oath, two jurors asked to be excused from the panel (one on religious grounds, the other on grounds of conscience). The trial judge denied their requests.  I am satisfied that he exercised his discretion judicially in this regard but I am troubled by his accompanying comments.  As Fraser C.J. put it in her dissenting reasons, the judge’s comments and questions “amounted to a reaffirmation of the direction to convict” (para. 14) and their cumulative effect was that “the jury was obliged to follow the instructions given earlier and convict Krieger” (para. 18):

In the case of Juror No. 12, the direction was express.  When she started to explain why her conscience prevented her from judging the appellant, she stated . . .

A.   Here in the — in our — in our group, we — there are only two choices to — yes or no, or to be guilty or not guilty.  So . . ..

Q.   Actually there is one choice and that is guilt.

               A   Guilty, yeah.  So to me it’s difficult to say that he’s guilty.

. . .

As for Juror No. 8 who said he wished to be excused on religious grounds, his answers to the questions posed demonstrate that he too was under no illusions as to the instructions the trial judge gave — the jury was to convict regardless.  This juror was asked to explain why his conscience prevented him from making a decision.  His answer at AB 223 demonstrates why this Court ought not to conclude that despite the error of law here, there is no reasonable possibility that the verdict would have been different nor for that matter that the result of a new trial would clearly be a conviction:

When I look at this case and all the facts presented, I think I understand the legal parameters in which I must remain. I feel this man is not a guilty man, and I can’t say guilty, even though I understand your charge, and I’m struggling with this, and I can’t bring myself to say guilty.

Juror No. 8 concluded his testimony before the trial judge stating at AB 224:

I believe that I could not live with myself if I was part of a conviction of this man. (paras. 15, 19-20)

 In these exchanges, the trial judge further undermined the role of the jury in the eyes of the two members who sought to be excused and ultimately, we may safely presume, in the eyes of the jurors they then rejoined.  Moreover, I agree with Fraser C.J. that “[t]his record clearly reveals from events following the charging of the jury that the jury did not understand that it had the final call on Krieger’s guilt or innocence” (para. 11).

No great victory for the "decriminalize it" or "legalize it" supporters (of which I am one). Instead, this is just a victory for the administration of justice. (Believe it or not, the Alberta Court of Appeal upheld the conviction.) Here is the CBC report.

If anyone knows the name of the trial judge, let me know.

You do not have to be a serious observer of Canadian politics to figure that a spring election is somewhat likely. Neither the NDP nor The Bloc have any interest in allowing the new Liberal Party Leader get his feet under him and start running. The Tories are in a similar situation but have to play more coy. As such there is little chance that the 2007 budget will be passed and we will find ourselves at the polls. There is little time then to tackle a few issues that need tackling and we should start with free speech.

This writer is calling for the repeal of Part 17 of Canada Elections Act which places spending limits on third parties during elections. The Limit is $150,000 with no more than $3000 in any riding. The alleged purpose of this act was to protect the public, who clearly must be stupid and/or gullible and/ r selfish from being influenced by non registered political parties. In other words, it protects state sanctioned speech. Here are sections 350 -352 of the Act:

350. (1) A third party shall not incur election advertising expenses of a total amount of more than $150,000 during an election period in relation to a general election.  

Spending limit electoral district

(2) Not more than $3,000 of the total amount referred to in subsection (1) shall be incurred to promote or oppose the election of one or more candidates in a given electoral district, including by

(a) naming them;

(b) showing their likenesses;

(c) identifying them by their respective political affiliations; or

(d) taking a position on an issue with which they are particularly associated.  

Expenses re party leader

(3) The limit set out in subsection (2) only applies to an amount incurred with respect to a leader of a registered party or eligible party to the extent that it is incurred to promote or oppose his or her election in a given electoral district.  

Spending limit by-election

(4) A third party shall not incur election advertising expenses of a total amount of more than $3,000 in a given electoral district during the election period of a by-election.

Third party inflation adjustment factor

(5) The amounts referred to in subsections (1), (2) and (4) shall be multiplied by the inflation adjustment factor referred to in section 414 that is in effect on the issue of the writ or writs. No combination to exceed limit 351. A third party shall not circumvent, or attempt to circumvent, a limit set out in section 350 in any manner, including by splitting itself into two or more third parties for the purpose of circumventing the limit or acting in collusion with another third party so that their combined election advertising expenses exceed the limit. Advertising must name third party 352. A third party shall identify itself in any election advertising placed by it and indicate that it has authorized the advertising.

One would think that it is indefensible and that the Supreme Court of Canada would never allow this violation of free speech. Think again. Apparently the majority of the Court believed that when harm cannot be defined it is best to err on the side of regulating speech. The majority worked around the obvious and adopted the statist position that equalityt is found at the finish line, not the starting blocks. The reasoning of the Chief Justice in dissent makes much more sense, though it still is not completely satisfactory. Here is an excerpt:

35 On the other side of the equation, the infringement on the right is severe. We earlier reviewed the stringency of the limits. They prevent citizens from effectively communicating with their fellow citizens on election issues during a campaign. Any communication beyond the local level is effectively rendered impossible, and even at that level is seriously curtailed. The spending limits do not allow citizens to express themselves through mail-outs within certain ridings, radio and television media, nor the national press. Citizens are limited to 1.3 percent of the expenditures of registered political parties. This is significantly lower than other countries that have also imposed citizen spending limits. It is not an exaggeration to say that the limits imposed on citizens amount to a virtual ban on their participation in political debate during the election period. In actuality, the only space left in the marketplace of ideas is for political parties and their candidates. The right of each citizen to have her voice heard, so vaunted in Figueroa, supra, is effectively negated unless the citizen is able or willing to speak through a political party. 36 On this point, this case is indistinguishable from Libman, supra, where the Court held that the spending limits imposed on citizens in the course of a referendum campaign did not satisfy the requirement of minimal impairment. The Court held that the legislature in a case such as this must try to strike a balance between the right to free expression and equality among the citizens in expressing their views. The limits imposed failed to meet the minimal impairment test in the case of individuals and groups who could neither join nor affiliate themselves with the national committees. The Court stated that the restrictions were so severe that they came close to being a total ban and that better, less intrusive alternatives existed. The situation is precisely the same here. 37 In Libman, supra, at para. 63, the Court stated that “[i]t can be seen from the evidence that the legislature went to considerable lengths, in good faith, in order to adopt means that would be as non-intrusive as possible while at the same time respecting the objective it had set.Here, too, Parliaments good faith is advanced, said to be evidenced by the ongoing dialogue with the courts as to where the limits should be set. But as in Libman, good faith cannot remedy an impairment of the right to freedom of expression.

38. There is no demonstration that limits this draconian are required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair. On the contrary, the measures may themselves exacerbate these dangers. Citizens who cannot effectively communicate with others on electoral issues may feel they are being treated unequally compared to citizens who speak through political parties. The absence of their messages may result in the public being less well informed than it would otherwise be. And a process that bans citizens from effective participation in the electoral debate during an election campaign may well be perceived as unfair. These fears may be hypothetical, but no more so than the fears conjured by the Attorney General in support of the infringement. 39 This is not to suggest that election spending limits are never permissible. On the contrary, this Court in Libman has recognized that they are an acceptable, even desirable, tool to ensure fairness and faith in the electoral process. Limits that permit citizens to conduct effective and persuasive communication with their fellow citizens might well meet the minimum impairment test. The problem here is that the draconian nature of the infringement to effectively deprive all those who do not or cannot speak through political parties of their voice during an election period overshoots the perceived danger. Even recognizing that [t]he tailoring process seldom admits of perfection (RJR-MacDonald, supra, at para. 160), and according Parliament a healthy measure of deference, we are left with the fact that nothing in the evidence suggests that a virtual ban on citizen communication through effective advertising is required to avoid the hypothetical evils of inequality, a misinformed public and loss of public confidence in the system.

In any event, the time has come for the law to be repealed. This is particularly so if you look at the nominal plaintiff in the Charter challenge to the Supreme Court (Hint: He is the Prime Minister of Canada). The Harper Government can give people back their voice, allow them to organize and to attempt to influence people to subscribe to their point of view. Perhaps you will not like the position of someone. Perhaps you will find it offensive. Perhaps it will motivate you to get involved in the process and work for a particular candidate or party. Or, perhaps the advertising and spending will have no influence on you at all. The fact is that the ability of individuals to express themselves as they see fit is worthy of protection while the electorate need less protection from themselves than the social scientists happen to believe. So, Mr. Harper, if you happen to be reading, repeal the third party election spending provisions of the Canada Elections Act. There will not be a public outcry and you will make some friends on the Libertarian side of the fence. And while you are in the mood for good policy, drop the three strikes and you're out idea.

Update: I forgot to comment that now that the Tories are in Government and the Act is particularly helpful in protecting incumbents, I doubt we will hear much about this.

As well, there have been developments in the Supreme Court of The United States on McCain-Feingold

Supreme Court of Canada Nominees will have to jump through the hoop of a public questioning prior to being appointed to the bench. This will please some of the electorate, annoy others and most will not know that it happened. The complaint being addressed is the political nature of the appointments. For reasons difficult to decipher, the solution will be to subject the nominees to the most political of processes. The questions for the nominees will be designed only to promote the political success of the questioner. In short it will be a populist sham. Good judges need the courage to do that which it is most difficult to do. The easy thing for a judge to do is to make a politically popular decision. It will be wrong legally, bring uncertainty into the system and increase the power of the police or the state. It will destroy the certainty of contract and lessen individual responsibility for individual actions, but the masses will cheer. Take the worst case example, the police collect evidence on a serial rapist in a manner that violates the rights of said rapist. The easy thing for a judge to do is to allow that evidence to be used at trial to get a conviction. The result will be popular. The masses will cheer. The downside is that the methods used by the police will now be permissible in any investigation. By diminishing the rights of the rapist, the rights of all are diminished. The tough thing to do, that which will be the most unpopular, is to protect the rights of the accused, throw out the evidence and in the end protect the rights of all individuals from police illegality. The masses will go nuts and the judge and the system will be vilified, but the result will be the correct one and the one that best ensures freedom from the state. The court is the protector of the individual from the state. The independent court system is what separates Canada, the USA, Britain and those handful of other democracies from a tyranny of the majority. Politicizing the process will not get us better judges, it will get us more popular judges and we will be a lesser society for that.

The Supreme Court of Canada has yet again put the State ahead of individual rights. I thought their job was to protect us from the state.

When will the employers of this world learn that the non-competition clause that they include in employment contracts have to be reasonable so not as to not be void as against public policy as a restraint of trade. I just finished looking at a non-compete for a relative. The industry is investor relations for mining companies. The non-compete says no working in the industry for a year anywhere in North America. While a company is allowed to protect its client base, this certainly does not mean that the employer can restrain an individual from making a living within their area of competence. The non-compete must be reasonable. The employer in this case practically admits that the geographic area and the duration of the clause may be unreasonable. They put in a second clause that has the employee agree that the geographic area and the duration is reasonable. Not that the employer sent the employee out to get independent legal advice to advise what reasonable means in the particular circumstances. No lawyer would agree that clause was reasonable. The seminal case comes from late 19th century England where in Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co., [1894] A.C. 535 at 552 (H.L.), where it was held

• the general policy of the law is opposed to restraints of trade that cause harm to the public interest,
• although the freedom of individuals to contract must be respected.

The public has an interest not only in having people working, but also in the expansion of the market place and increased competition. A non-compete cannot therefore be an unreasonable restraint on trade. A clause that bans the employee from the market must be as narrow as is possible to protect the proprietary interests of the employer.

Canadian legal principles are set out by the Supreme Court of Canada in Elsley v. J.G. Collins Ins. Agencies, [1978] 2 S.C.R. 916:

• a non-compete will be enforceable only if it is reasonable between the parties and with regard to the public interest;
• "reasonableness" must be considered in the context of the non-compete clause, the entire employment contract, and all of the surrounding circumstances;
• a non-compete clause will be construed more strictly against the employer than a restrictive covenant in a contract for the sale of a business against the seller.
• an employer seeking to rely on a non-compete must prove that it has a proprietary interest entitled to protection and that the geographic restrictions and the duration are no wider than what is reasonable to provide adequate protection to said proprietary interest.
• once the employer has shown that the covenant meets these criteria, the onus shifts to the employee to prove that the non-compete is contrary to the public interest.

You can add to this that independent legal advice is should be recommended to the employee and the employer may want to pick up the tab for such advice.

The danger in making a non-compete unreasonable is that it may well lose its validity in total. Where a reasonable clause will protect the client base and trade secrets, the step into the unreasonable may put the client base in legitimate play for the former employee.