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Charter - Oakes Test (s.1)
MORE CASES
Part 2
. Ontario (Attorney General) v. Trinity Bible Chapel
In Ontario (Attorney General) v. Trinity Bible Chapel (Ont CA, 2023) the Court of Appeal considered a church group's appeal against a dismissal of their Charter s.52 declaration application involving the COVID provisions of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. At paras 88-134 the court walks-through the steps of the s.1 Charter 'justification' analysis.
. R. v. Ndhlovu
In R. v. Ndhlovu (SCC, 2022) the Supreme Court of Canada applied s.7 of the Charter to strike down some criminal sex offender provisions for being overbroad. The quotes below are selected for a recent version of the s.1 doctrine on reasonable Charter limits: [59] The first step in an overbreadth analysis is to determine the purpose of the challenged provisions (R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 24; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24). It is to that preliminary question that we now turn.
[60] Several principles have emerged to assist a court in properly characterizing a law’s purpose.
[61] The focus is on the purpose of the challenged provisions, not of the entire act in which they appear, although a correspondence between those purposes may sometimes occur (Moriarity, at paras. 29 and 48; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 144).
[62] The law’s purpose should be succinct, precise, and characterized at the appropriate level of generality, which “resides between the statement of an ‘animating social value’ — which is too general — and a narrow articulation” that amounts to a virtual repetition of the challenged provision, divorced from its context (Safarzadeh‑Markhali, at para. 27, quoting Moriarity, at para. 28).
[63] A law’s purpose is distinct from the means used to achieve that purpose (Safarzadeh‑Markhali, at para. 26; Moriarity, at para. 27).
[64] To determine an impugned law’s purpose, courts may consider: statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and extrinsic evidence such as legislative history and evolution (Safarzadeh-Markhali, at para. 31; Moriarity, at para. 31).
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[77] Having identified the purpose of the measures, the next step is to determine whether they are overbroad. A law is overbroad when it is so broad in scope that it includes some conduct that bears no relation to its purpose, making it arbitrary in part (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 112). In other words, overbreadth addresses the situation where there is no rational connection between the purpose of the law and some, but not all, of its impacts (para. 112).
[78] The Court in Bedford clarified that a law is overbroad even if it overreaches in only a single case (paras. 113 and 123). A law cannot deprive the life, liberty, or security of the person of even one individual in a way that is inconsistent with the principles of fundamental justice. As a consequence, laws that are broadly drawn to make enforcement more practical run afoul of s. 7 should they deprive the liberty of even one person in a way that does not serve the law’s purpose (para. 113). The Court in Bedford concluded that enforcement practicality may justify a broad law under s. 1 of the Charter (para. 144), but it “is no answer to a charge of overbreadth under s. 7” (Safarzadeh‑Markhali, at para. 53, citing Bedford, at para. 113).
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[102] The Crown submits s. 490.012 is not overbroad, since the risk of recidivism is difficult to assess and even expert assessments are error-prone. Thus, it says, there is no other alternative that would capture the information to assist police. There are two difficulties with the Crown’s argument.
[103] First, as discussed above, the Crown cannot save a law from overbreadth for reasons of “administrative convenience” or to make enforcement more practical (Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at p. 219; see Bedford, at para. 113; Carter, at para. 88; Safarzadeh-Markhali, at para. 53). As the Crown relies on the same concern here, it does not save mandatory registration under s. 7, but must be addressed under s. 1.
[104] It is worth elaborating on why questions of enforcement practicality are generally not addressed under s. 7 of the Charter. This type of argument implicitly accepts that an individual’s rights are breached but holds it is justified for the sake of a benefit to the public — making the administration or enforcement of a law more practical or convenient. As a result, the argument goes to the heart of the s. 1 analysis: the justification of a breach of an individual’s rights in pursuit of a greater public good (i.e., laws that are easier to enforce or administer), rather than the “narrower” question under s. 7, which concerns “whether the impugned law infringes individual rights” (Bedford, at para. 125). Considerations of enforcement practicality balance harm to an individual’s rights against a benefit to the public and so fall at the core of s. 1. They are appropriately addressed as part of the Crown’s burden under s. 1 as a result.
[105] Since Bedford, the Court has consistently rejected arguments premised on enforcement practicality and administrative convenience under s. 7 of the Charter. In Bedford, the Court concluded that the criminal offence of living on the avails of prostitution was overbroad. The purpose of the offence was “to target pimps and the parasitic, exploitative conduct in which they engage” (para. 137). The offence was overbroad to the extent it captured persons who were not in exploitative business relationships with sex workers, including accountants and receptionists (para. 142). The Attorneys General of Canada and Ontario argued the law needed to be broadly drawn due to the blurry line between exploitative and non-exploitative relationships (para. 143). The Court concluded this argument, premised on enforcement practicality, was better addressed under s. 1 of the Charter (para. 144).
[106] Later, in Carter, the Court considered a challenge to a criminal prohibition on assisted dying. The purpose of the prohibition was to protect vulnerable individuals from committing suicide in a moment of weakness (para. 78). The Court concluded the prohibition was overbroad to the extent it applied to individuals who were not vulnerable (para. 86). In reaching this conclusion, the Court rejected the Crown’s argument that the law needed to be broadly drawn due to the difficulty of conclusively identifying vulnerable individuals (paras. 87-88). The Court again held this argument was properly addressed under s. 1 (para. 88).
[107] A year later, in Safarzadeh‑Markhali, the Court considered a challenge to a provision that barred offenders who were denied bail due to a prior conviction from receiving enhanced credit for presentence custody. The provision’s purpose was “to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs” (para. 47 (emphasis deleted)). The Court concluded it was overbroad since it applied to offenders who did not pose a threat to public safety or security, including those denied bail for non-violent prior offences, such as missing a court date (paras. 52-53). The Crown argued that the provision cast a broad net since that was more practical than identifying only those offenders that posed a public safety risk (para. 53). The Court, citing Bedford, held this concern for enforcement practicality did not save the provision from overbreadth under s. 7 (para. 53).
[108] Bedford, Carter, and Safarzadeh-Markhali all affirm that Parliament cannot rely on enforcement practicality or administrative convenience to immunize a law from overbreadth under s. 7 of the Charter. The proper approach is to address such considerations under s. 1. The Crown’s attempts to rely on enforcement practicality under s. 7 similarly fail in this case.
[109] Moreover, judges make risk assessments routinely, including those informed by expert assessments. Notwithstanding these assessments may not be certain, they are capable of being well informed by an individual’s personal circumstances and the best expert evidence. Clearly, there are instances where a sentencing judge can reasonably conclude that it is remote or implausible that an offender’s information will ever prove useful to police.
[110] Finally, in the past, judges may have improperly exempted offenders on the basis of gross disproportionality by relying on myths and stereotypes about sexual assaults (see J. Benedet, “A Victim-Centred Evaluation of the Federal Sex Offender Registry” (2012), 37 Queen’s L.J. 437). To the extent some trial judges may have interpreted the former exemption too broadly, those trial decisions are always subject to appellate review and guidance. This cannot render an unconstitutional law constitutional.
[111] Thus, mandatory registration is overbroad. Since it captures offenders who are not at an increased risk to reoffend, s. 490.012 breaches s. 7 of the Charter.
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[117] Having concluded that ss. 490.012 and 490.013(2.1) breach s. 7 of the Charter, it remains to determine whether the measures can be justified under s. 1. The Crown submits the measures are saved by s. 1. We do not accept this submission.
[118] The Crown bears the burden of establishing that the challenged measures’ infringement of s. 7 is justified under s. 1 of the Charter. To meet its burden under s. 1, the Crown must show the infringement is “demonstrably justified”, which means the infringing measures must be justified based on a “rational inference from evidence or established truths” (RJR-MacDonald, at para. 128). Bare assertions will not suffice: evidence, supplemented by common sense and inference, is needed (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 78).
[119] A breach of the Charter is justified under s. 1 when the challenged law has a “pressing and substantial object and . . . the means chosen are proportional to that object” (Carter, at para. 94). The law is proportionate where the means adopted are rationally connected to the law’s objective, minimally impairing of the right in question, and the law’s salutary effects outweigh its deleterious effects (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 136-40). The focus of the analysis is on the infringing measures, not on the overall legislative scheme. Thus, the Crown’s burden requires it to show the challenged measures, and not SOIRA as a whole, impose a reasonable limit on s. 7 (Ontario (Attorney General) v. G, 2020 SCC 38, at para. 72, citing RJR‑MacDonald, at para. 144; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 20).
[120] The defence concedes that the prevention and investigation of sex crimes is a pressing and substantial purpose. We agree. Parliament’s goals in enacting SOIRA are laudable. In our view, this holds true for the specific objectives of the provisions at issue. Parliament’s efforts to provide tools to police that make it easier to prevent and investigate sex offences are clearly aligned with the public’s interest in preventing sex crimes and bringing sex offenders to justice.
[121] Furthermore, the measures are rationally connected to their objectives. The standard is not onerous; Oakes requires a rational connection, not a complete rational correspondence (R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 80; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 148). This test is met here. Since a conviction for a sexual offence is a reliable indicator of an increased risk of reoffending and committing another sex offence after a conviction can increase recidivism risk, it is reasonable to suppose the provisions may further their respective objectives (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 48). Yet, as we explain, the measures fail the other branches of the Oakes test.
(1) Sections 490.012 and 490.013(2.1) Are Not Minimally Impairing of an Offender’s Rights
[122] A key issue on this appeal is whether the measures are minimally impairing of an offender’s rights. To be minimally impairing, the challenged provisions must interfere with s. 7 “as little as reasonably possible in order to achieve the[ir] legislative objective” (RJR-MacDonald, at para. 160). The analysis turns on whether there are alternative, less drastic means of achieving the objective in a real and substantial manner (K.R.J., at para. 70). The Crown bears the burden of showing no less drastic means are available (Safarzadeh-Markhali, at para. 63). A court need not find that the alternative measures “satisfy the objective to exactly the same extent or degree as the impugned measure[s]” (Hutterian Brethren, at para. 55 (emphasis in original)). Instead, it suffices that the alternative measures “substantially” achieve the challenged measures’ objective (paras. 55 and 60). For this reason, the Court in G rejected the Crown’s argument that since recidivism risk could not be perfectly predicted, the mandatory and permanent registration of offenders who were found not criminally responsible on account of mental disorder in Ontario’s sex offender registry was minimally impairing. The Court concluded that absolute certainty in risk assessments cannot be expected (para. 75). For similar reasons, we conclude the Crown has not discharged its burden on this step.
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(2) Sections 490.012 and 490.013(2.1)’s Deleterious Effects Outweigh Their Salutary Effects
[129] At the heart of the s. 1 analysis is the determination of whether the salutary effects outweigh the negative impacts of the challenged measures. This is the final stage of the proportionality inquiry in Oakes. We conclude that the Crown has also not met its burden at this stage.
[130] The final stage requires a court to weigh the harm to the claimant’s rights against the public benefits conferred by the challenged measure, by asking whether “the benefits which accrue from the limitation [of the claimant’s rights] are proportional to its deleterious effects” (K.R.J., at para. 77, quoting Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 125). The final stage of the Oakes test, as a result, involves a broader assessment than in the prior stages of “whether the benefits of the impugned law are worth the cost of the rights limitation” (Hutterian Brethren, at para. 77). Benefits that are speculative and marginal in nature carry less weight when balanced against a measure’s significant and tangible deleterious effects (K.R.J., at para. 92; Thomson Newspapers Co., at paras. 129-30).
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[134] More significantly, the Crown has adduced no evidence that demonstrates the salutary effects of the challenged measures. Under s. 1, the onus is on the Crown to justify the specific infringing measures, not the overall scheme (G, at para. 72). The Crown did not adduce any evidence on the difficulties that police faced in investigating sexual offences with SOIRA before the 2011 amendments and how the amendments mitigated these difficulties. No evidence was adduced to demonstrate the benefit of registering every sex offender, without regard for their risk of reoffending. To the contrary, we note that Dr. Hanson, the Crown’s own expert, testified that “[b]lanket policies that treat all sex offenders as ‘high risk’ waste resources by over-supervising lower risk offenders and risk diverting resources from the truly high-risk offenders who could benefit from increased supervision and human service” (A.R., vol. II, at p. 236). No more evidence was presented on the benefits that flow from police having longer access to the information of offenders who have committed multiple offences without an intervening conviction.
[135] In this case, we must weigh those potential and theoretical benefits against the impact on registrants. The impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable. To reiterate, SOIRA’s reporting requirements are not routine: the scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment make the conditions onerous. Additionally, these effects are more acute when considering their effects on marginalized populations, such as people experiencing homelessness. Considering these deleterious impacts, the sparse evidence on the provisions’ benefits and the fact that the registration of approximately 10 percent of offenders who have the lowest recidivism risk does not serve the provisions’ purpose, we conclude the Crown did not meet its burden at this stage either. As result, the Crown has not shown that ss. 490.012 and 490.013(2.1) are saved under s. 1 of the Charter. . Ontario Teacher Candidates’ Council v. The Queen
In Ontario Teacher Candidates’ Council v. The Queen (Div Ct, 2021) the Divisional Court sets out the s.1 Oakes test and it's elements:[105] Section 1 of the Charter allows a law or state action to limit a right guaranteed under the Charter if the law or state action is a “reasonable limit prescribed by law” that can be “demonstrably justified in a free and democratic society.” As the Supreme Court of Canada has stated, it is the limitation on equality rights that must be justified, not the legislative scheme as a whole: Fraser, at para. 125.
[106] The test for a s. 1 justification is that established by R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. The Oakes test has two components: (1) is the legislative goal pressing and substantial; and (2) is there proportionality between that goal and the means used to achieve it? The second component of the test has three parts: (a) is there a “rational connection” between the impugned measure and the pressing and substantial objective; (b) does the limit impair the right or freedom no more than is reasonably necessary to accomplish the objective; and (c) is there proportionality between the deleterious and salutary effects of the law?
[107] The Respondent bears the onus of satisfying all the parts of the Oakes test. It is the Applicants’ submission that none of the components of the Oakes test can be satisfied on the record. The Respondent submits that all of the components are met. We have concluded that the MPT furthers a pressing and substantial objective and is rationally connected to the objective. However, we find that the MPT does not minimally impair the rights of racialized teacher candidates and that the benefits of the MPT do not outweigh the deleterious effects. Therefore, the Respondent has not met its burden and the MPT cannot be justified under s. 1 as a reasonable limit prescribed by law.
Is There a Pressing and Substantial Objective for Limiting the Charter Rights?
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[111] The threshold for what constitutes a pressing and substantial objective is relatively low and appears to have remained consistent since the original articulation of the test set out in R. v. Oakes. The objective must of be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: Oakes, at para. 69, quoting R. v. Big M. Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at para. 139. To be capable of justifying limits on Charter rights, the objective must not be “trivial” and must not be “discordant with the principles integral to a free and democratic society”: Sauvé v. Canada, 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 20, citing Oakes, at para. 69. This standard has sometimes been framed as whether the objectives are “directed to the realization of collective goals of fundamental importance:” Sauvé, at para. 137, citing Oakes, at para. 65; see also Gordon v. Canada (Attorney General), 2016 ONCA 625, 404 D.L.R. (4th) 590, at para. 195, leave to appeal to S.C.C. refused, 2017 CanLII 6740 (S.C.C.). Courts have held that a measure of deference is appropriate in determining whether the infringing measure is directed towards a pressing and substantial objective: Galganov v. Russell (Township), 2012 ONCA 409, 350 D.L.R. (4th) 645, at para. 65, leave to appeal to S.C.C. refused, 2012 CanLII 76983 (S.C.C.); see also Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143.
[112] Evidence is not typically required at this stage and courts may make this determination on the basis of common sense alone: R. v. Sullivan; R. v. Chan, 2020 ONCA 333, 151 O.R. (3d) 353, at para. 109; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 25, McLachlin C.J. and Major J., dissenting on other grounds. It is not necessary for the government to prove the existence of the alleged problem for the objective to be found pressing and substantial. The failure to demonstrate the existence or scale of the alleged problem targeted by the legislature has generally been a consideration for the proportionality analysis, rather than the assessment of the objective.
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Is the MPT rationally connected to the objective of improving student achievement in math?
[115] To meet this step of the s.1 analysis, it need only be “reasonable to suppose that the limit may further the goal, not that it will do so”: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 49. The Supreme Court has described this test as “not particularly onerous”: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 228; see also Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 40.
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Does the MPT minimally impair the Applicants’ rights?
(a) General Principles Regarding Alternatives at the Minimal Impairment Stage
[121] At the minimal impairment stage, the Respondent must show that the limit impairs the right or freedom as little as reasonably possible in order to achieve the legislative objective: Oakes, at para. 70; RJR-MacDonald Inc. v. Canada, 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160. Recent cases continue to rely on the following passage from RJR-MacDonald as setting the applicable standard:As the second step in the proportionality analysis, the government must show that the measures at issue impair the right … as little as reasonably possible in order to achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. 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: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail: RJR-MacDonald, at para. 160, cited in Frank v. Canada, 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 66; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 68; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 454, at para. 50 [Quebec v. Alliance]. [122] The question at this stage is not whether it is possible for the court, with the full benefit of hindsight, to imagine an alternative that is slightly less impairing than the government’s chosen means. Indeed, it may not be possible to assess the impacts of social policies with a high degree of specificity, and evidence will often not be available in such matters: College of Midwives of British Columbia v. Mary Moon, 2020 BCCA 224, 40 B.C.L.R. (6th) 151, at para. 108, citing Sauvé, at para. 18. It is only where alternatives are “clearly superior” that the law would fail on this basis: Gordon, at para. 260; Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, at para. 62, citing Wilson J. in Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at para. 173.
[123] Despite the language in RJR-MacDonald that suggests less impairing alternatives must be “equally effective,” the majority in Hutterian Brethren has clarified this standard and held that alternatives do not need to satisfy the pressing and substantial objective to exactly the same degree as the government’s chosen means. Rather, this standard includes measures that give sufficient protection, in all the circumstances, to the government’s goal. Accordingly, the test at the minimal impairment stage can be rephrased as “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner”: Hutterian Brethren, at para. 55.
[124] For the purposes of the minimal impairment stage, the Respondent is not required to accept a less impairing alternative that does not sufficiently achieve its goal. However, this does not necessarily mean the limit on the right will be justified because it may still be the case that notwithstanding that the infringing measure is the “only” means of achieving the pressing and substantial objective, its deleterious effects may outweigh its salutary effects at the final balancing stage.
Deference at the Minimal Impairment Stage
[125] A deferential approach is appropriate where the government is addressing a complex social problem with many potential solutions, as compared to contexts where the government acts as the “singular antagonist” of the affected individual, such as in the case of penal laws. Where the legislature is mediating between the competing claims of different groups in society, the choice of means will often involve assessing conflicting scientific or social science evidence and differing demands on scarce resources which cannot be evaluated by the courts with the same degree of certainty: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at para. 81; Hutterian Brethren, at para. 53. In these circumstances, the question is “whether the government had a reasonable basis, on the evidence tendered” for concluding that its chosen means impaired the right as little as possible given the government’s pressing and substantial objective: Irwin Toy, at para. 82.
[126] While financial considerations alone are not sufficient to justify an infringement of Charter rights, courts have held that they are relevant to determining the standard of deference owed at the minimal impairment stage: Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 283.
Evidence at the Minimal Impairment Stage
[127] Although some deference to the legislature will be warranted, evidence will “generally” be required in order to justify an infringement under s. 1 of the Charter: Oakes, at para. 68. Common sense and logical inferences can supplement the evidence, but as the Court has cautioned, deference must not be substituted for the “reasoned demonstration” required by s. 1: Sauvé, at para. 18.
[128] Courts will typically look to evidence that the government explored options other than the impugned measure and evidence supporting its reasons for rejecting those alternatives. The government may adduce evidence that it consulted with affected parties in order to demonstrate that it explored a range of options, though there is no requirement that the government engage in consultation before legislating: Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 157. The government might also adduce evidence to show that the less impairing alternatives proposed are not likely to achieve the government’s objectives or are otherwise not workable, or that the proposed alternatives are not in fact less impairing.
[129] Although claimants will typically argue for particular alternatives, the burden remains on the government, and claimants do not necessarily need to definitely prove the effectiveness of proposed alternatives: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 119.
[130] Where the infringing measure is predicated on the existence of a specific problem, the court may look to evidence that the problem exists or that existing tools are ineffective in order to justify the imposition of the infringing measure. For example, in Quebec v. Alliance, a majority of the Supreme Court held that amendments to Quebec’s pay equity legislation were not minimally impairing. The objective of the new provisions was to encourage employer compliance, but the Court held that Quebec had failed to adduce evidence of meaningful efforts to enforce compliance, such as through stricter enforcement of the existing offence provisions in the legislation, without resorting to a rights infringement. Without evidence that enforcement efforts had been ineffective, the government failed to discharge its burden at that stage.
[131] Overall, while the approach to the minimal impairment stage is deferential, the government is typically required to demonstrate a reasonable basis, on the evidence, for concluding that its chosen means were minimally impairing and that it had sound reasons for rejecting proposed alternatives.
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Do the benefits of the MPT outweigh any deleterious effects?
[149] The final stage of Oakes requires that the salutary effects of the impugned law – typically with reference to the anticipated attainment of the asserted legislative objective – outweigh its deleterious effects. This allows for a broader assessment of whether the benefits of the impugned law in terms of public good are worth the costs of the rights limitation. In JTI-Macdonald, the Court stated, at para. 45:This inquiry focuses on the practical impact of the law. What benefits will the measure yield in terms of the collective good sought to be achieved? How important is the limitation on the right? When one is weighed against the other, is the limitation justified? . Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court, after holding that the TTC-labour statute violated Charter s.2(d), summarizes to the classic Charter s.1 Oakes analysis:D. Is the breach of s. 2(d) justified under S. 1 of the Charter?
[65] Once it is determined that the TTC Act violates s. 2(d) of the Charter, the burden shifts to Ontario to justify the infringement under s. 1.
[66] The framework for deciding whether legislation that breaches a Charter right can be justified under s. 1 is well-established. As Karakatsanis and Martin JJ. explained in their majority reasons in R. v. Ndhlovu, 2022 SCC 38, 419 C.C.C. (3d) 285, at paras 118-19:To meet its burden under s. 1, the Crown must show the infringement is “demonstrably justified”, which means the infringing measures must be justified based on a “rational inference from evidence or established truths.” Bare assertions will not suffice: evidence, supplemented by common sense and inference, is needed.
A breach of the Charter is justified under s. 1 when the challenged law has a “pressing and substantial object and . . . the means chosen are proportional to that object.” The law is proportionate where the means adopted are rationally connected to the law’s objective, minimally impairing of the right in question, and the law’s salutary effects outweigh its deleterious effects. [Citations omitted.]
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