Rarotonga, 2010

simonshields@isthatlegal.ca

Online Lawyer (Ontario)

Most Popular
Contracts / Torts / Evidence / Limitations / tenant / small claims /
welfare (ontario works) / odsp / human rights / employment / consumer /
Administrative Law | SPPA

home / about / Simon's Favorite Charity / testimonials / Conditions of Use

Talk to
the Lawyer

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.

. 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.


Website © Simon Shields 2005-2020