Simon's Megalomaniacal Legal Resources

Charter - Oakes Test (s.1) (2)

. Binance Holdings Limited v. Ontario Securities Commission

In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").

In these quotes the court contrasts the fuller Charter Oakes s.1 test with the administrative Dore-Loyola doctrine:

[53] There is no issue that the framework for the Charter analysis is as set out in Doré and Loyola, above, rather than under R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. For a discretionary administrative decision that “engages the protections enumerated in the Charter”, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that [the decision-maker] is obliged to pursue.”: Loyola, at para. 4, citing Doré.

. Covant v. College of Veterinarians of Ontario

In Covant v. College of Veterinarians of Ontario (Ont CA, 2023) the Court of Appeal considered (with leave) a further appeal from a s.35 Veterinarians Act Divisional Court appeal, which was in turn an appeal from a College of Veterinarians of Ontario (CVO) Discipline Committee's order that the appellant had "engaged in professional misconduct by re-selling large quantities of veterinary drugs to human pharmacies, contrary to a newly amended regulation".

In these quotes the court considers the doctrine of 'overbreadth', which can arise as a s.1 Charter issue - assuming that a substantive Charter rights or freedoms issue is present:

[35] Generally speaking, s. 7 does not protect economic interests. In particular, “section 7 does not protect the right to practise a particular profession”: see Hamish Stewart, Fundamental Justice, 2nd ed. (Toronto: Irwin Law, 2019), at p. 107. This was the holding of this court in Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1, a case involving the mandatory revocation of a licence to practice medicine as result of the “sexual abuse” of a patient, as defined under s. 51(5) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

[36] Mussani challenged the validity of this provision under ss. 2(d), 7, and 12 of the Charter. Addressing the general scope of Charter protection, Blair J.A. said, at paras. 41 and 43:

The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession…[Citations omitted.]

...

I am satisfied, therefore, that there is no constitutionally protected right to practise a profession, and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter.

....[41] In his supplementary submissions, Dr. Covant clarified that his overbreadth and void for vagueness claims are no longer predicated on a breach of s. 7 of the Charter; instead, he submits that his claims are grounded in the rule of law, a precursor to the doctrines that evolved under s. 7 of the Charter: Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at p. 210. Further, Dr. Covant relies on vagueness and overbreadth as interpretative tools in relation to the enforcement of municipal by-laws, and other subordinate legislation, including s. 33(d) of the General Regulation. See, for example, Clublink v. Town of Oakville, 2018 ONSC 7395, 143 O.R. (3d) 738, at paras. 74-75 and Wainfleet Wind Energy Inc. v. Wainfleet (Township), 2013 ONSC 2194, 115 O.R. (3d) 64, at para. 31, both addressing alleged vagueness and uncertainty of by-laws.

[42] Acknowledging the authority of Tanase in this context, the College submits that “administrative legislation should generally be interpreted and applied in a manner consistent with the rule of law and basic constitutional values,” and that Dr. Covant is “not precluded from arguing that the regulation in question should not be enforced on the basis of ‘overbreadth’ and ‘vagueness’ on the basis that a regulatory regime should comply with the rule of law.”

[43] It is not necessary to definitively resolve the juristic footing of Dr. Covant’s submissions on this point in order to dispose of this ground of appeal. Whether rooted in the Charter or in more general rule of law considerations, I agree with the findings of the Committee and the Divisional Court that s. 33(2)(d) of the Regulation is not impermissibly vague, nor is it overbroad.

....

[47] The question of overbreadth is even more straightforward. Returning to Mussani, the question is whether the means chosen by the legislator are “unnecessarily broad, going beyond what is needed to accomplish the governmental objective”: at para. 69, citing R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761. The rationale provided for the amendment by the College’s Council was “to mitigate the risk of veterinarians engaging in the purchase and sale of drugs for purposes other than to ensure a substance required by patients is legitimately available via a pharmacy or another member.” In my view, the Divisional Court reached the correct conclusion on this issue.

[48] Dr. Covant submits that there was no evidence before the Committee that his conduct created harm to the public and, for this reason, s. 33(2)(d) overshoots the mark. There are two problems with this submission. First, the College is not required to wait for harm to materialize before taking action. Instead, the College is entitled to regulate its members to mitigate risk. Second, this submission amounts to a challenge to the wisdom of the amendment to s. 33(2)(d). Indeed, this was a recurrent theme in a number of Dr. Covant’s submissions. That Dr. Covant does not agree with the Regulation is of no concern to the College, nor to the courts.

[49] Dr. Covant further submits that s. 33(2)(d) is overbroad because, as a result of pharmaceutical companies refusing to supply drugs to human pharmacies, the provision is in effect a categorical prohibition on the re-sale of drugs to pharmacies. I would reject this submission. The College has no control over the sales and marketing strategies of private pharmaceutical entities, something that may or may not shift over time. While pharmaceutical companies may refuse to supply human pharmacies with certain drugs, this does nothing to demonstrate that the impugned section of the Regulation captures conduct beyond what is required to achieve the College’s objective. Section 33(2)(d) is sufficiently tailored to its objective of mitigating the risk of re-sale of drugs for certain purposes, regardless of how this may impact pharmacies’ inventories.

. Covant v. College of Veterinarians of Ontario

In Covant v. College of Veterinarians of Ontario (Ont CA, 2023) the Court of Appeal considered (with leave) a further appeal from a s.35 Veterinarians Act Divisional Court appeal, which was in turn an appeal from a College of Veterinarians of Ontario (CVO) Discipline Committee's order that the appellant had "engaged in professional misconduct by re-selling large quantities of veterinary drugs to human pharmacies, contrary to a newly amended regulation".

In these quotes the court considers the doctrine of 'vagueness', which can arise as a s.1 Charter issue - assuming that a substantive Charter rights or freedoms issue is present:

[41] In his supplementary submissions, Dr. Covant clarified that his overbreadth and void for vagueness claims are no longer predicated on a breach of s. 7 of the Charter; instead, he submits that his claims are grounded in the rule of law, a precursor to the doctrines that evolved under s. 7 of the Charter: Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at p. 210. Further, Dr. Covant relies on vagueness and overbreadth as interpretative tools in relation to the enforcement of municipal by-laws, and other subordinate legislation, including s. 33(d) of the General Regulation. See, for example, Clublink v. Town of Oakville, 2018 ONSC 7395, 143 O.R. (3d) 738, at paras. 74-75 and Wainfleet Wind Energy Inc. v. Wainfleet (Township), 2013 ONSC 2194, 115 O.R. (3d) 64, at para. 31, both addressing alleged vagueness and uncertainty of by-laws.

[42] Acknowledging the authority of Tanase in this context, the College submits that “administrative legislation should generally be interpreted and applied in a manner consistent with the rule of law and basic constitutional values,” and that Dr. Covant is “not precluded from arguing that the regulation in question should not be enforced on the basis of ‘overbreadth’ and ‘vagueness’ on the basis that a regulatory regime should comply with the rule of law.”

[43] It is not necessary to definitively resolve the juristic footing of Dr. Covant’s submissions on this point in order to dispose of this ground of appeal. Whether rooted in the Charter or in more general rule of law considerations, I agree with the findings of the Committee and the Divisional Court that s. 33(2)(d) of the Regulation is not impermissibly vague, nor is it overbroad.

[44] In R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, Gonthier J.A. wrote: “[t]he doctrine of vagueness can therefore be summed up in this proposition: a law will be unconstitutionally vague if it so lacks precision as not to give sufficient guidance for legal debate”: at p. 643; see also Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, at para. 62. Building on this analysis in Mussani, Blair J.A. wrote that, “unconstitutional vagueness stems from language that is so imprecise neither the individual concerned nor the agency enforcing the provision can determine whether the conduct in question is prohibited or not”: at para. 63.

[45] Section 33(2)(d) does not fun afoul of this standard. The two phrases under attack – “in reasonable quantities” as a result of a “temporary shortage” – provide permissible room for legal debate. The fact that a regulation requires interpretation in the context of a specific factual matrix does not suffice for a finding of vagueness. Here, the impugned phrases are complementary – they inform the content of each other, and in so doing, achieve an acceptable level of clarity. I agree with the observation that, “[b]ased on the context, ‘reasonably limited quantities’ would mean quantities proportionate to the temporary shortage”: at para. 33 of the Divisional Court reasons.