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Charter - s.1 Oakes Test - Minimum Impairment (2). Animal Justice v. Ontario (Attorney General)
In Animal Justice v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against Superior Court findings that "invalidated several sections of the Act [SS: the 'Security from Trespass and Protecting Food Safety Act, 2020' (STPFSA)] and associated Regulation on the basis that these provisions intentionally limited the respondents’ freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, and that the limits are not justified".
The court considers the Charter s.1 Oakes 'balancing' test, here the 'minimal impairment' element:4. Minimal impairment
[96] Minimal impairment is meant to be a primarily technical inquiry. Holding the objective of the legislation more or less constant, it asks if there are less rights-impairing – more efficient – means to achieving it. The legislature does not need to choose the least intrusive means conceivable. As the Supreme Court explained in Montréal (City), at para. 94:The Court will not interfere simply because it can think of a better, less intrusive way to manage the problem. What is required is that the [legislature] establish that it has tailored the limit to the exigencies of the problem in a reasonable way. [97] As this court has recently stated, although the provision of some legislative exceptions may help satisfy this inquiry and provide some reassurance that the legislature turned its mind to the question, the absence of exceptions does not necessarily entail the conclusion that the provision is not minimally impairing: Hillier, at para. 56; Sharma (ONCA), at para. 275, per Miller J.A. (dissenting).
[98] At this stage of the inquiry, the application judge focused specifically on s. 9 of the Regulation – the false statement provision – together with the exceptions carved out by ss. 11 (journalists) and 12 (whistleblowers). He concluded that the s. 9 restriction was not minimally impairing. He gave three reasons: (1) the restrictions are not reasonably tailored to the objectives of the Act; (2) the whistleblower exception is unnecessarily narrow; and (3) the journalist exception is unnecessarily narrow.
[99] The application judge reasoned that the s. 9 restriction on false statements captured persons who would pose no threat to biosecurity of a farm:[A]n undercover activist who obtains a job at a farm … by denying any affiliation with an animal rights group or by understating their qualifications and denying they have a university degree automatically becomes a trespasser although they have done nothing to increase any of the risks that the Act is aimed at reducing. The person could in fact be a model employee who has adhered to all biosecurity protocols, treated animals with the highest degree of care and ensured the safety of their co-workers. [100] I would conclude that the Act and Regulation are minimally impairing, essentially for the same reasons that I found the Act and Regulation do not limit the respondents’ s. 2(b) rights. The scenario posited by the application judge is of course possible. It is not indefeasibly true that someone who uses false pretences to gain employment on a farm to conduct an exposé will inevitably be a bad employee, cause harm to animals or spread pathogens by not observing proper protocols. Although Ontario provided examples of particular cases where activists had accessed farms and caused significant harm to animals through incompetence, negligence and sheer irresponsibility, the application judge discounted these examples on the basis that some of them involved conventional trespass without deception, by persons who were not acting as employees.
[101] Really, though, the distinction is irrelevant. Farm operators are entitled to know whom they are dealing with so they can assess what risks they are willing to accept. Conventional farm employees are presumptively aligned with the purposes of their employer. Such employees are incentivized to learn and follow policies. If they do not, they will lose their employment, which is something of at least some value to them. Undercover activists have no such alignment of purpose. They have another employer, their primary allegiance is elsewhere and they would prefer a world in which the farm operator is not in business. They may well be conscientious in performing the tasks they are assigned, but they may not. The question is whether this is a risk that farm operators – and government acting in the public interest – must be required to accept.
[102] The irony is that in crafting the legislation that it did and allowing some scope for undercover exposés, the government is then faced with having to justify why the line was not drawn elsewhere. The minimal impairment requirement does not demand that a government defending legislation demonstrate that the line drawn could not have been drawn any place else. What it has to do is establish that the scheme chosen falls within a reasonable range of solutions. It has done so in this case.
[103] In any event, the argument becomes much more difficult for the respondents when the exceptions set out in ss. 11 and 12 are considered.
[104] Section 12 sets out the exception for whistleblowers. The application judge found the exception had an adverse effect on expression because it compelled reporting to a person in authority and required the report to be made as soon as practicable. He found this to be a further infringement of s. 2(b). Presumably for that reason he found the whistleblower exception not to support the argument that ss. 5(6) and 9 are minimally impairing. However, my reasons above for concluding that s. 12 does not infringe s. 2(b), also negate any obstacle to characterizing it as supporting the conclusion that it further tailors the Regulation to the purpose of the Act, and support the conclusion that the Act is minimally impairing.
[105] With respect to the journalism exception in s. 11, the application judge found it to be so narrow as to not be of any practical benefit. Again, I do not agree. The exception provides that a journalist can obtain consent by deceit and can remain on the farm provided that the journalist does not harm animals and is not subsequently directed to leave the premises. It takes away the liability for trespass. This provision narrows the scope of s. 9. It ought to have supported the finding that s. 9 was minimally impairing. . Quebec (Attorney General) v. Lalande
In Quebec (Attorney General) v. Lalande (SCC, 2026) the Supreme Court of Canada dismissed a Quebec AG's appeal, this from a Quebec CA ruling that allowed the respondent's appeal, this against the Quebec Superior Court ruling that "held that the ATI infringes the right guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms because it interrupts the independent process of electoral boundary reform at a time when numerous electors’ right to vote is already diluted", but that it was justified under Charter s.1. The ATI ['Act to interrupt the electoral division delimitation process'] had the effect of eliminating an electoral division in Gaspe.
Here the court comments on deference accorded to the 'minimal impairment' element of Charter s.1 (Oakes) proportionality:[7] .... It is true that the state is accorded a measure of deference at the minimal impairment stage (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 53). In addition, I recognize that, depending on the circumstances, the unanimity of a legislative assembly may help to demonstrate that electoral reform was enacted in good faith rather than for purely partisan purposes. However, the mere fact that the ATI was passed unanimously by the National Assembly is not here a determinative consideration that shields the ATI from constitutional scrutiny and relieves the appellant of his burden, under s. 1 of the Charter, of demonstrating that the law has been “carefully tailored so that rights are impaired no more than necessary” (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160, cited by C.A., at para. 78). . Bujacz v. Ontario College of Teachers
In Bujacz v. Ontario College of Teachers (Ont Div Ct, 2026) the Ontario Divisional Court dismissed appeals, here brought against "the decisions of the Ontario College of Teachers .... (the Discipline Decision), .... (the Penalty Decision) and .... (the Charter Decision)" - these respecting "remarks of a sexual nature to a student on Facebook" that invoked "mandatory revocation of the teacher’s certificate of qualification and registration".
Here the court walks through the Charter s.1 'minimal impairment' element:[84] Moving to minimal impairment, the appellant submits that the evidence did not show how less-impairing means could satisfy the goal of protecting students from sexual abuse. The appellant submits that leaving the penalty determination to the Discipline Panel would satisfy the objective. The College and Attorney General submit that mandatory revocation, with the opportunity to reapply after five years, is minimally impairing.
[85] Under the minimal impairment analysis, the government “is not required to choose the absolutely least intrusive alternative” especially if less intrusive means would not “achieve the same objective as effectively”: R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, at para. 39.
[86] The question is whether the measures chosen by government fall within the range of reasonable alternatives: Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43; Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344, 160 O.R. (3d) 748, at para. 139, aff’d in Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134, 166 O.R. (3d) 81, leave to appeal dismissed [2023] S.C.C.A. No. 168.
[87] Here, mandatory revocation only arises after a discipline committee determines, following a full hearing with the onus on the College, that a teacher has made sexual remarks to a student. The remarks must be sexual in nature. They must be made to a student. Expression that is pedagogically appropriate is excluded. Revocation is not permanent.
[88] We are not persuaded that the Discipline Panel erred in concluding that making revocation discretionary would fail to meet the legislative objective of protecting students and providing them with a safe learning environment. The Panel correctly held that “[g]iven the seriousness of the misconduct and the harmful effects sexual abuse can have on students … anything less than mandatory revocation for a finding of sexual abuse of students would fail to properly denounce sexual abuse and fail to meet the College’s legislative objective of protecting students.”
[89] The appellant further submits that the Panel erred in adopting a “bright-line” approach to mandatory revocation based on a misreading or misapplication of the Court of Appeal’s decisions in Mussani and Tanase.
[90] We disagree. In Tanase, the Court of Appeal held that imposing a “bright-line” rule that prohibits sexual relationships between regulated health professionals and patients better prevents sexual abuse and is permissible under the Charter. The Discipline Panel here did not simply adopt that rule. The Panel noted that Mussani and Tanase were challenges under s. 7 and 12 of the Charter. The Panel found the reasoning that membership in a profession is a privilege and not a constitutionally protected right, and that mandatory revocation infringes an economic right that is not constitutionally protected, persuasive.
[91] In Tanase, at para. 49, the Court of Appeal held that the College of Dental Hygienists’s zero tolerance policy for sexual relationships “assures patients that their relationships with health care providers will not become sexualized – that they will not have to negotiate a sexualized atmosphere in seeking health care.” These principles apply with equal force to this case. Teachers have a statutory duty to provide a safe environment for students.
[92] As held by the Panel at para. 69: “What is considered professional misconduct, and what penalties may be ordered against members may change over time. In the Panel’s view, strict penalties for sexual abuse of students are a reasonable limit that the Member accepted when he chose to become a teacher.”
[93] We further agree with the Attorney General’s submission that this case is an example of a “complex social [issue] where the legislature may be better positioned than the courts to choose among a range of alternatives,” citing Hutterian Brethren, at para. 53. In making that assessment, the courts “accord the legislature a measure of deference”. Here, the legislative decision to impose mandatory revocation are intended to protect students, undoubtedly a vulnerable group, from teachers who engage in sexual abuse despite their trusted position and obligations to that group.
[94] We conclude that the challenged provisions satisfy the requirement that they be minimally impairing and move on to the proportionality analysis. That analysis asks whether the overall effects of impugned law are disproportionate to the government’s objective: Hutterian Brethren, at para. 73. . Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court revisits the Charter s.1 'minimal impairment' element:[234] In a great majority of cases, minimal impairment has been the linchpin of the s. 1 analysis (Hogg and Wright, at § 38:20). At this stage, the government must prove that there were no less harmful means to achieve the objective in a real and substantial manner. Some deference is owed to the government, especially when responding to complex social problems, but the right must be impaired as little as reasonably possible (John Howard Society, at para. 95; R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, at para. 135). Judicial deference should not extend to accepting any law “simply on the basis that the problem is serious and the solution difficult” (RJR-MacDonald, at para. 136).
[235] Hindsight plays no role in this analysis (Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at paras. 95-96). While we now know more about COVID-19, and the intensity of spring and summer 2020 may seem like a distant memory, the s. 1 analysis is conducted based on what was known when the decisions were made.
....
[245] The test for minimal impairment is not a standard of perfection, nor — we reiterate — does it operate with the benefit of hindsight. The government is entitled to deference in achieving its pressing and substantial objective, particularly in a health emergency. We agree with the application judge that none of the alternatives constituted a similarly effective, less rights-impairing substitute for the travel restriction to meet the objective of protecting those in Newfoundland and Labrador from illness and death. . Ontario Public Service Employees Union v. Ontario (Attorney General)
In Ontario Public Service Employees Union v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissal of a labour union's application for "a declaration that Bill 178 [SS: 'Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017'] limited the rights of OPSEU members to freely associate in striking under s. 2(d) [SS: 'freedom of association'] of the Canadian Charter of Rights and Freedoms in a manner that could not be justified under s. 1 of the Charter, and a declaration under s. 52 of the Constitution Act, 1982 that Bill 178 is of no force and effect".
Here the court considered whether the 'Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017' (which was 'back-to-work' legislation) and which breached Charter s.2(d) ['freedom of association'], was justified under Charter s.1 [ie. was demonstrably justified] - here under the 'minimal impairment' element:[28] With the continuing evolution of the Oakes test, minimal impairment no longer plays the dominant role, especially in areas where complex social policy is under consideration and significant court deference is accorded to the legislature. The proportionate effects inquiry has become weightier.
[29] The evolution of the law can be seen in the changes in Professor Peter Hogg’s longstanding text on constitutional law: Peter Hogg & Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2007) (loose-leaf 2025-Rel. 1). Professor Hogg originally took the position that the proportionate effects inquiry was “redundant”: at § 38:22. Latterly, Professor Wade Wright, the current editor, favours what he calls a “competing view”, that “while it may change the outcome only rarely, it nonetheless still has an important role to play, and may change the outcome in some cases”: at § 38:22. This evolution is seen in the cases as well: see Hutterian Brethren, at paras. 75-78, per McLachlin C.J., and at para. 149, per Abella J. (dissenting, but not on this point); and Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 46. The idea that the proportionate effects inquiry was redundant was not accepted elsewhere: see Guy Régimbald and Dwight Newman, The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis Canada, 2017), at §§ 20.32-20.33; Dwight Newman, Halsbury’s Laws of Canada, “Constitutional Law (Charter of Rights)”, (Toronto: LexisNexis Canada, 2023 Reissue), at HCHR-23; and Michael Plaxton, Sovereignty, Restraint, & Guidance: Canadian Criminal Law in the 21st Century (Toronto: Irwin Law, 2019), at pp. 64-65.
[30] The governing principles of law on the minimal impairment inquiry are that Parliament or the legislature need not choose the absolutely least intrusive means to attain the pressing and substantial objective; the means selected must come within a range of means that limit the Charter right or freedom as little as reasonably possible: R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, at para. 64. Justice Wilson held that in circumstances where the legislature must accommodate divergent interests in crafting legislation, as is the case in labour relations, an impugned law would fail the minimal impairment inquiry only where there are alternative measures “clearly superior to the measures currently in use”: Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, [1991] S.C.J. No. 52, at para. 170.
[31] Justice McLachlin’s (as she then was) formulation of the test in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160, was adopted by the Supreme Court in Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, at para. 58: “The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.” Accordingly: “If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement” (citations omitted).
[32] Justice Gonthier’s caution continues to resonate: “it is not sufficient that a judge, freed from all [policymaking] constraints, could imagine a less restrictive alternative”: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 112. Chief Justice McLachlin and Deschamps J. explained that “[t]he Court will not interfere simply because it can think of a better, less intrusive way to manage the problem”: Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 94. They added: “What is required is that the [government concerned] establish that it has tailored the limit to the exigencies of the problem in a reasonable way.”
[33] Finally, McLachlin C.J. stated in Hutterian Brethren, at para. 53: “In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.”
[34] Judicial deference to the legislature at the minimal impairment stage has increasingly taken the form of a flexible approach that is sensitive to the context of the law in issue.
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