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Canadian Animal Law

Canadian Charter of Rights and Freedoms

I've practiced Charter law in past, though it is a complex field so I haven't included it in the Latest Word topics before. This is just a start at it. There is a section on Charter tort law here.

Oakes Test (s.1)
Freedom of Expression (s.2b)
Electoral Representation (s.2c)
Privacy (s.8)
Discrimination (s.15)
Declarations of Invalidity (s.52)
Unwritten Constitution
Delayed Declaration Remedy
Charter II

. Friedman v. Canada (National Revenue)

In Friedman v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the role of adjudicative facts in Charter cases:
[35] The jurisprudence is clear (and abundant) that courts should not decide constitutional cases in a factual vacuum. This principle finds recent expression in Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 at para. 22 where the following appears:
Where a person challenging a law’s constitutionality fails to provide an adequate factual basis to decide the challenge, the challenge fails. As Cory J. put it on behalf of the Court in MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at p. 366, “the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position”.

(emphasis in the original)
[36] That said, in an early Charter case, the Supreme Court left open the possibility that a finding of invalidity could be made on the face of the statute or provision:
However, the principle I am discussing is not absolute. There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter and might perhaps be struck down right away; see Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 CanLII 32 (SCC), [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases are exceptional.

Manitoba (A.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (S.C.C.), [1987] 1 S.C.R. 110 at para. 50
[37] One of the reasons that such cases are exceptional is that an apparent conflict between legislation and the Charter may be capable of resolution using the tools available in Charter litigation. This issue was considered in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 [Reference re Same-Sex Marriage], a reference as to the constitutionality of the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes (Same sex reference). One of the arguments raised against the proposed legislation was that religious officials would be compelled to perform same-sex marriages contrary to their religious beliefs which would conflict with same-sex couples’ right to be free from discrimination. The Supreme Court dealt with this as follows:
This leaves the issue of whether the Proposed Act will create an impermissible collision of rights. The potential for a collision of rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, at paras. 73-74. In both steps, the Court must proceed on the basis that the Charter does not create a hierarchy of rights (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877) and that the right to religious freedom enshrined in s. 2(a) of the Charter is expansive.

Reference re Same-Sex Marriage at para. 50
[38] The result is that legislation which, on its face, contains Charter violations may yet be found to be constitutional on the basis of contextual facts and the balancing of interests pursuant to section 1 of the Charter. All this to say that the possibility of fact-free determinations of constitutional invalidity is extremely limited.
. Ontario Nurses’ Association v. Participating

In Ontario Nurses’ Association v. Participating (Ont CA, 2021) the Court of Appeal explains the role of Charter law in the administrative context [though it was not necessary to apply the Taylor-Baptiste v. Ontario Public Service Employees Union (Ont CA, 2015) case in the appeal]:
Charter values and s. 15 Charter rights

[26] The Unions have asserted throughout that the Tribunal and the courts must consider Charter values as an aid to interpret the Act – an argument that was accepted by the Divisional Court. They rely, in part, on this court’s decision in Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, 126 O.R. (3d) 481, leave to appeal refused, [2015] S.C.C.A. No. 412. In Taylor-Baptiste, the court had the following to say about Charter values in the administrative law context, at paras. 54-57:
Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case….

Binding authority prevents the acceptance of the appellants’ submission. Slightly more than a decade after deciding Bell ExpressVu, the Supreme Court rejected an argument similar to the appellants’ when, in R. v. Clarke, it stated, at para. 16:
Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.
The appellants’ second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case – i.e. whether the respondents’ conduct violated s. 5(1) of the Code.

While I take the appellants’ point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré, when read as a whole, prevents the acceptance of the appellants’ submission. First, in Doré the Court stated that “administrative decisions are always required to consider fundamental values” (emphasis in original). Second, the context which framed the court’s discussion in Doré was analogous to the present case – i.e. the determination by an administrative tribunal about whether a person’s conduct had violated the strictures of a statutory or regulatory rule. [Footnotes omitted.]
[27] The Unions further submit on their cross-appeal that, if the Act does not require maintenance using the proxy method, the Act contravenes s. 15 of the Charter.

[28] The PNH and the AGO submit that the Tribunal was not required to consider Charter values because, unlike in Taylor-Baptiste, there was no ambiguity in the statute. They further submit that if Taylor-Baptiste stands for the proposition that administrative actors must always consider Charter values when interpreting statutes, even in the absence of ambiguity, then Taylor-Baptiste was wrongly decided because it is inconsistent with Supreme Court authorities.


Charter Values

[85] My conclusion that the Tribunal’s decision is unreasonable rests on the application of the modern principle of statutory interpretation. It is unnecessary to determine whether the Tribunal also erred in failing to take into account Charter values in interpreting the Act. While I leave the Charter values issue for another day, I would question the need to resort to a Charter values analysis in a situation like this one where the Charter value in question – equality – is consistent with the purpose of the legislation, which is to redress discrimination in compensation. Accordingly, there is no need to determine whether Taylor-Baptiste was wrongly decided on the question of Charter values.
. Quebec (Attorney General) v. 9147-0732 Québec inc.

In Quebec (Attorney General) v. 9147-0732 Québec inc. (SCC, 2020) the Supreme Court of Canada confirmed the (I think obvious) point that corporations were not subject to the Charter's 'cruel and unusual punishment' protections [paras 7-17].

. Shortt (Re)

In Shortt (Re) (Ont CA, 2020) the Court of Appeal considered a NCR (non-criminally responsible) case that took a first step at obtaining what can be called a 'housing funding' remedy:
[1] The appellant, Wesley Shortt, has been detained in forensic custody since March 7, 2007 after he was found NCR with respect to one count of uttering threats and one count of failure to comply with probation. He is currently detained at St. Joseph’s Healthcare Hamilton (“Hospital”). Since at least 2014, the Ontario Review Board (“Board”) has repeatedly held that, at the discretion of the Person in Charge of the Hospital, Mr. Shortt is eligible to live in the community of Southern Ontario in accommodation approved by the Person in Charge.

[2] Mr. Shortt is eligible to live in a community residential setting if appropriate supports are provided. If this happens, his detention in forensic custody would not be necessary for public safety, nor would it advance any of the factors in s. 672.54 of the Criminal Code.

[3] Unfortunately, this component of the Board’s dispositions for Mr. Shortt, consistent for the last six years, has not been implemented. While the Hospital continues to support Mr. Shortt’s integration into a community residential setting, he has not been integrated into a community setting because, despite its best efforts, the Hospital has been unable to locate a suitable setting or to obtain meaningful information from the Government of Ontario as to when such a setting might become available.

[4] To break this impasse, Mr. Shortt applied for relief under the Canadian Charter of Rights and Freedoms at his annual review hearing. He argued that his continued detention in forensic custody violated s. 7 of the Charter. If successful on this argument, he sought a prospective remedy under s. 24(1) of the Charter, namely, state funding for suitable supportive housing as described by his treatment team at the Hospital.


[76] The remedy sought by Mr. Shortt in his Charter application is: “An order allowing the application, releasing the Applicant from the Hospital, and directing the Attorney General to fund appropriate community housing for the Applicant forthwith.”

[77] At the appeal hearing, in response to a question, the appellant acknowledged that an order that the Government (not necessarily the Attorney General) provide community housing with appropriate supports to Mr. Shortt (without mentioning “funding”) in a timely fashion (not “forthwith”) would be appropriate.

[78] I regard this as a fair response. Accordingly, in the highly unusual circumstances of this case, where for six years the Hospital has deemed Mr. Shortt capable of living in the community yet been unable to obtain any meaningful information about why no community setting has been made available to him, it is time for an order. I am inclined to make an order with two components.

[79] First, it is almost 14 months since the Board’s last evaluation of Mr. Shortt. At the appeal hearing, the court was informed that his next annual review is scheduled for November 24, 2020. In my view, the review should take place. In the Board’s last review, based on “the joint submission of the parties”, the Board “found that Mr. Shortt continues to represent a significant threat to the safety of the public” but also that he was eligible “to live in the community of Southern Ontario in accommodation approved by the person in charge.” This has been the Board’s consistent assessment for several years.

[80] Accordingly, in the interests of public safety and fairness to Mr. Shortt, at this stage it is appropriate for the Board to conduct its next annual review and determine whether this longstanding privilege, to be extended at the direction of the Person in Charge, remains an appropriate aspect of the disposition.

[81] Second, the Government must be ready at the next annual review to address the precise location in the community where Mr. Shortt can be placed no later than the end of 2020, provided of course that the Person in Charge of the Hospital deems that setting appropriate. This will require the Attorney General and the MCCSS to work closely together. At this juncture, that is entirely appropriate.

[82] This is an exceptional case. For six years running, the Board has deemed Mr. Shortt capable of living in the community at the discretion of the Person in Charge of the Hospital. For six years running, the Hospital has deemed Mr. Shortt capable of living in the community. The difficulty is that, despite its best efforts, the Hospital has not been able to determine why an appropriate residential setting has not been made available for Mr. Shortt or even when one may be made available. As a result, Mr. Shortt has been languishing in the Hospital and his condition is starting to deteriorate, a development that stands as the antithesis to one of the ultimate purposes of the NCR scheme, to work safely toward the reintegration of NCR accused back into society.

[83] It is against this very unusual backdrop that Mr. Shortt’s liberty has been violated, and not in accordance with the principles of fundamental justice. Provided the Board determines that his condition continues to warrant the possibility of community living with support, the Government must respond immediately and meaningfully to this pressing need for implementation. The Government’s role at the next annual review hearing must be to identify precise implementation, not to contest it.
. Fraser v. Canada (Attorney General)

In Fraser v. Canada (Attorney General) (SCC, 2020) the Supreme Court of Canada engages in an adverse impact Charter s.15 analysis, with substantial consideration of prior doctrine [paras 27-82].

. Trinity Western University v. Law Society of Upper Canada

In Trinity Western University v. Law Society of Upper Canada (SCC, 2018) the Supreme Court of Canada sets out the administrative law approach used where the Charter is invoked:
[30] Administrative decisions that engage the Charter are reviewed based on the framework set out in Doré and Loyola. The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context. In this way, Charter rights are no less robustly protected under an administrative law framework.

[31] Under the precedent established by this Court in Doré and Loyola, the preliminary question is whether the administrative decision engages the Charter by limiting Charter protections — both rights and values (Loyola, at para. 39). If Charter protections are engaged, the question becomes “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré, at para. 57; Loyola, at para. 39).
. 3510395 Canada Inc. v. Canada (Attorney General)

In 3510395 Canada Inc. v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal considered an appeal of CRTC orders under Canada's Anti-Spam Legislation dealing with email spam, in the course of which it conducted a thorough s.2(b) Charter analysis [paras 130-202].

. 3510395 Canada Inc. v. Canada (Attorney General)

In 3510395 Canada Inc. v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal considered an appeal of CRTC orders under Canada's Anti-Spam Legislation dealing with email spam. One of the issues involved some basics of a Charter s.7 analysis:
E. Does CASL Violate Section 7 of the Charter?

[226] The appellant briefly refers to CASL’s violation of both section 7 and section 8 of the Charter (Appellant’s Constitutional Memorandum at paras. 84(a), 87).

[227] The appellant’s section 7 argument must fail because, as the preceding sections of these reasons make clear, the appellant does not face penal proceedings. The appellant, as a corporation, therefore has no standing to bring a claim under section 7 of the Charter.

[228] It is well established that "“everyone”", as that term appears in section 7, "“exclude[s] corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include[s] only human beings.”" (Irwin Toy at 1004; see also Dywidag Systems International Canada Ltd. v. Zutphen Brothers Construction Ltd., 1990 CanLII 140 (SCC), [1990] 1 S.C.R. 705, 68 D.L.R. (4th) 147 at 709 [Dywidag Systems]). A corporation cannot, as a general principle, avail itself of the protections provided by section 7.

[229] The exception to this rule is that a corporation charged with a penal provision may challenge that provision on the basis that it violates a human being’s section 7 rights. This exception was first articulated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 and has been reaffirmed by the Supreme Court on several occasions (see, for example, Irwin Toy at 1004; Dywidag Systems at 709; R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, 84 D.L.R. (4th) 161 at 179 [Wholesale Travel]). In light of my finding that the appellant corporation is not defending against a criminal charge, "“[t]here are no penal proceedings pending in the case at hand, so ""the principle articulated in ""Big M Drug Mart"" is not involved.”" (Irwin Toy at 1004). The appellant thus remains constrained by the general principle that corporations may not avail themselves of the protections offered by section 7 of the Charter. The appellant’s section 7 claim must therefore fail.
. Criminal Lawyers Assn v Ministry of Public Safety and Security

In Criminal Lawyers Assn v Ministry of Public Safety and Security (Ont CA, 2007) the Court of Appeal held that provisions of Ontario's FIPPA (Freedom of Information and Protection of Privacy Act) legislation that excluded law enforcement records from a general public interest override were a violation of Charter s.2(b). The Charter analysis runs from paras 26-96. The case is important for including within the s.2(b) Charter analysis the obtaining of government information as a subsequent means of enabling freedom of expression with respect to that information.

. R v Conway

On the general question of when an administrative tribunal has Charter jurisdiction, the Supreme Court of Canada in the 2010 case of R v Conway (SCC, 2010) had to decide whether the Ontario Review Board, established under the Criminal Code to decide custodial issues respecting persons declared not criminally responsible ("NCR") by the courts, was a "court of competent jurisdiction" for the purposes of considering Charter law and granting Charter remedies under s.24(1) of the Charter. The court took the oppourtunity to clarify and summarize the law with respect to when any administrative tribunal could apply Charter s.24(1). The court held that the primary question was (similar to that discussed in Tranchemontagne regarding the Human Rights Code) whether the tribunal generally had jurisdiction to decide questions of law. Unless that was expressly restricted by statute, then the tribunal had Charter s.24(1) jurisdiction, but could only grant remedies within it's conventional remedial jurisdiction:
[78] The jurisprudential evolution leads to the following two observations: first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, they must act consistently with the Charter and its values when exercising their statutory functions.


[82] Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function ('Dunedin').
The law prior to this was quite similar, though it focussed on requiring that the tribunal have jurisdiction over the parties, the subject-matter, the law, and the remedies sought.


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