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Charter - s.2(b) Freedom of Expression

. Gillies v Bluewater District School Board

In Gillies v Bluewater District School Board (Div Court, 2023) the Divisional Court considered an interesting Charter administrative issue, that of a JR applicant who sought to address (but was denied at first and subsequent instances) a school board meeting regarding their view on transexualism. Here, the court applies the Doré/Loyola Charter-administrative analytic framework:
Balancing the severity of the infringement of the applicant’s right as against the Board’s objectives and policies which constrained them:

[37] The respondent concedes that the applicant’s right to freedom of expression, as guaranteed by s. 2(b) of the Charter, was infringed by the Board’s decision to refuse to permit her to make her presentation orally. Given this, both parties agree that the Doré/Loyola framework is the proper approach to take. A majority of the Supreme Court in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, at paras. 30-31, summarized that approach as follows:
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.

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).
[38] The applicant argues that the Board failed to engage in this balancing exercise in its reasons, thereby making it impossible for an appellate court to review the decision to determine if it was reasonable. She argues that the balancing exercise must be a “robust” one, and that it is not open to this court to conduct its own such exercise when the decision-maker has failed to do so.

[39] The respondent argues that it is clear that the Board balanced the applicant’s Charter right as against the Board’s statutory obligations under the Education Act and Human Rights Code, in making the offer to provide a written copy of the applicant’s presentation to the trustees. This proposed compromise (which the applicant declined) meant that the applicant’s right to freedom of expression was impaired to the most minimal extent possible. It submits that the reasons for the decision, when considered in context, were transparent, intelligible, and justified.

[40] With regard to the balancing exercise, the respondent highlights its duties to promote an inclusive school climate for pupils of any sex, sexual orientation, gender identity, and gender expression, and to provide an environment free of discrimination and harassment. Transgender individuals are one of the most disadvantaged groups in society, frequently facing threats to their very existence: see Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 at para. 61.

[41] On the other side of the balancing scale, the respondent submits that the impact on the applicant’s Charter right was at the low end, for reasons already discussed.

[42] Once again, the question that must be addressed is the sufficiency of the Board’s reasons. Wagner C.J.C., at para. 91 in Vavilov, made the following comments in that regard:
A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.
[43] Further, at para. 97, he cited with approval the comments of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267 (F.C.), at para. 11, which stated, in part, as follows:
Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn ....
[44] In considering the Board’s decision within the institutional context in which it was made, one could not expect Ms. Sims to embark upon a nuanced consideration of the Doré/Loyola framework in her email to the applicant. Furthermore, the decision itself did not demand such an exercise. It was an extremely simple, binary decision: permit the presentation to be made or not. The reasons why it would be contrary to the laws and policies that constrain the Board to do so are, as already observed, both overwhelming and self-evident.

[45] As to the balancing exercise, it is reflected in the Board’s offer to provide the trustees with a copy of the applicant’s presentation. This proposal served to ensure that the applicant’s right to freedom of expression was respected, the only difference being that her views would be expressed in written form rather than orally. As a result, her Charter rights were minimally impaired.

[46] Notwithstanding the sparse nature of the Board’s reasons, we are satisfied that the decision, considered wholistically and in its context, “reflects a proportionate balancing of the Charter protections at play”. This is a situation, in our view, where the dots may be readily connected, and the direction in which those lines are headed is self-evident.
. Gillies v Bluewater District School Board

In Gillies v Bluewater District School Board (Div Court, 2023) the Divisional Court considered whether 'reasons for decision' were required at all when a school board declined to allow an oral presentation by anti-transexual advocates (here, emails were sent citing the school board human rights and Charter duties to be inclusive):
[25] Bluewater District School Board is a public school board enacted under section 58.1 of the Education Act. Section 169.1 of that Act creates a duty on every such school board to “promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any … sex, sexual orientation, gender identity, gender expression …”, and to develop and maintain policies to promote that goal. The Board also passed its own “Human Rights Policy”, stating its commitment to meeting its human rights obligations under the Charter and the Ontario Human Rights Code, and creating an environment free from discrimination.

[26] In determining whether the Board’s reasons were sufficient, it is appropriate to ask whether reasons were required at all in this situation. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Wagner C.J.C. said the following, at para. 77:
It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 (S.C.C.) , at p. 682; Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817(S.C.C.) , at paras. 22-23; Moreau-Bérubé, at paras. 74-75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des Témoins de Jéhovah de St-Jérôme-Lafontaine c. Lafontaine (Municipalité), 2004 SCC 48, [2004] 2 S.C.R. 650 (S.C.C.), at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.
[27] As already noted, Emery J. ruled that the decision in question was not the exercise of a statutory power of decision, but was instead an administrative decision made outside the by-laws. It was made by the Executive Committee and conveyed to the applicant by Ms. Sims.

[28] Section 6 of the bylaws provide for the appearance of delegations before the Board, such as the one the applicant proposed to make. The delegation is required to make a formal request, and provide specified information. A maximum of 20 minutes is provided for delegations, with each delegation to be allotted a maximum of 10 minutes. Significantly, a delegation has no right to make a presentation nor does the Board have an obligation to approve any particular application. Furthermore, the by-laws contain no requirement to provide written reasons for scheduling or refusing to schedule any delegation.

[29] There is no indication that an adverse decision would have a significant impact on the applicant. It is also noteworthy that the applicant had previously been afforded the opportunity to make the same presentation one year earlier, and did so. This greatly diminishes the importance of the issue to the applicant, since her wish to be publicly heard on this issue had already been satisfied. In view of that, coupled with the fact that the applicant had no participatory rights, this is a situation in which, in my view, no reasons were required to be given.

[30] Ultimately nothing turns on this conclusion since reasons were, in fact, delivered to the applicant. However, the extent of those reasons and the depth of detail that those reasons must contain in order to be “sufficient” is, in my view, coloured by the fact that reasons were not required in the first place.

[31] At para. 84 of Vavilov, Wagner C.J.C. described the approach that a court must take with respect to reasons that are delivered:
As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.
[32] In determining whether the decision was reasonable, the court asks itself whether the decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov, para. 85.

[33] In paying “respectful attention” to the Board’s reasons, there is no difficulty in understanding the reasoning process that led to the decision that was made. It is clear that to permit the applicant’s proposed presentation to be publicly aired at a Board meeting would run contrary to the laws, by-laws and policies regarding inclusiveness that bind it, and that permission was being denied for that reason.

[34] To understand the rationale for the Board’s decision, it is only necessary to imagine a trans student in attendance in the audience at the Board meeting where the applicant was making the presentation, and hearing it publicly declared that they do not, in fact, exist, but are instead the construct of a “harmful transgender ideology”. How could that meeting possibly be described as being part of a “positive school climate that is inclusive and accepting of all pupils, including pupils of any … sex, sexual orientation, gender identity, [or] gender expression…”?

[35] Suppose a delegation proposed to make a presentation advocating that BIPOC (Black, Indigenous, People of Colour) be taught in classrooms segregated from those where white students are taught. How many words of explanation would need to be expended in order to make it clear that such a presentation is repugnant and racist, and is being rejected on those grounds? The fact situation before this court is no less easily and clearly understood, and the reasons for denying such a presentation are equally self-evident. Nothing beyond what the Board did say is necessary in order to convey the rational chain of analysis that led to the conclusion the Board arrived at, one that is justified in relation to the facts and the legislation, by-laws and policies that constrain the Board.

[36] I conclude that the Board’s reasons are sufficient, and entirely reasonable.
. 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.

. 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].

. Guelph and Area Right to Life v. City of Guelph

In Guelph and Area Right to Life v. City of Guelph (Div Ct, 2021) the Divisional Court decided an interesting Charter s.2(b) freedom of expression judicial review case where an anti-abortion advocacy group had rented advertising space on municipal buses. The City removed the ads but did not follow approved procedures in deciding when to do so, under the applicable SCC cases of Doré v. Barreau du Québec (SCC, 2002) and Loyola High School v. Quebec (Attorney General (SCC, 2015):
Applicable test and standard of review

[45] The core issue in this case is whether the City’s decisions to remove the applicant’s three advertisements violated its section 2(b) rights under the Charter.

[46] Section 2(b) of the Charter provides that everyone has the “fundamental … freedom of thought, belief, opinion and expression…” Section 2(b) protects even unpopular and disturbing speech: see, for example, R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731. However, freedom of expression is not unlimited.

[47] In this case, as indicated above, the City concedes that the removal of the three advertisements limits the applicant’s right to freedom of expression. However, the City argues that its decisions represent a reasonable limit on the applicant’s rights.

[48] In circumstances where legislation or government policy purports to limit section 2(b) Charter rights, the courts apply the test developed under section 1 of the Charter to determine if the legislation or policy at issue is a reasonable limit on the right. In circumstances, such as here, where the right to freedom of expression is limited by an administrative decision-maker’s discretionary decision, the courts are to apply the test developed by the Supreme Court in Doré and Loyola.

[49] Under Doré/Loyola, the administrative decision-maker is first required to consider the statutory objectives at issue. The decision-maker must then consider how the Charter value at issue will best be protected in view of the statutory objectives. This is meant to be a proportionality analysis. The decision-maker is to balance the severity of the interference with Charter values against the statutory objective.

[50] Courts are to review this balancing exercise on a reasonableness standard. The court is to assess whether the decision maker has properly balanced Charter values against the statutory objectives. The court is to conduct this assessment on a reasonableness standard. As held in Doré, at para. 58, “[i]f, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable”.

[51] In Loyola, at para. 40, the Supreme Court clarified that this is meant to be a “robust” exercise and that Charter protected rights are to be “affected as little as reasonably possible”:
A Doré proportionality analysis finds analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing. Both R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and Doré require that Charter protections are affected as little as reasonably possible in light of the state’s particular objectives: see RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160. As such, Doré’s proportionality analysis is a robust one and “works the same justificatory muscles” as the Oakes test: Doré, at para. 5.
Prior decisions dealing with anti-abortion advertisements on municipal buses

[52] The Supreme Court of Canada has recognized that section 2(b) Charter rights extend to advertising on public transportation. In Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, the Supreme Court established that, where public transit authorities make advertising space available on their buses, their policies must comply with the Charter. In that case, the Court held that a city’s policy of excluding political advertisements while allowing commercial advertisements violated section 2(b) of the Charter. In the context of analyzing whether the policy was justified in a free and democratic society, at para. 77, the Court stated political speech is a “highly valued form of expression” and that public buses serve “as an important place for public discourse”.

[53] The specific issue of decisions by transit authorities limiting anti-abortion advertisements has already generated significant litigation in Canada. In these cases, the courts have applied the Doré/Loyola test to determine whether municipalities have reasonably balanced legislative objectives against the section 2(b) Charter rights of the party seeking to post advertisements. A review of these cases assists in understanding the principles that apply in this case.

[54] In Canadian Centre for Bio-Ethical Reform v. City of Peterborough, 2016 ONSC 1972 (Div. Ct.), the City of Peterborough had refused to post advertisements prepared by the applicant in that case that contained images and messages advocating against abortion. The applicant brought an application for judicial review. The City of Peterborough did not appear at the hearing and consented to an order that it would accept the applicant’s advertisements for posting. In that context, the Court declined to make a declaration to the effect that the respondent infringed its Charter rights, stating, at para. 25, that the lack of evidence from the City of Peterborough and the absence of an adversarial context did not provide the Court with a “full understanding of the statutory objectives being pursued by the Respondent and the ability to analyze whether the Applicant’s freedom of expression was being limited as little as possible in all of the circumstances”.

[55] In CHP v. City of Hamilton, 2018 ONSC 3690 (Div. Ct.), this Court dealt with another circumstance in which a municipality decided to remove advertisements that challenged equality rights for transgendered people. While the advertisements did not deal with abortion, they nevertheless raised similar legal issues. In that case, the Court granted an application for judicial review challenging the City of Hamilton’s decision because the municipality had accorded no procedural fairness to the applicant when it decided to remove the advertisements. In that context, at para, 61, the Court considered that the municipality had provided no evidence the decision-maker “resolved the competing values inherent in the decision she was to make. Nowhere did she (or any member of city staff or counsel) explain how the city balanced the applicants’ rights to engage in political speech versus transgendered citizens’ right to be free from discriminatory speech. Indeed, there is nothing in the record to suggest that the balancing was ever undertaken.”

[56] In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 154, the Court of Appeal of Alberta upheld a decision by the City of Grande Prairie declining to post advertisements that contained similar images and messages to those addressed in the City of Peterborough case. In that context, the Court accepted that Grand Prairie’s objective of providing a safe and welcoming transit system was a valid objective. The Court also accepted that rejecting “highly offensive or disturbing” materials has a rational connection to that objective. The Court went on to consider whether the restraint on the applicant’s free speech was proportional to the statutory objective and whether the applicant’s rights were minimally impaired. In doing so, the Court considered a number of factors that the Court said were all relevant but not conclusive on their own. The factors the Court considered are as follows:
a. Hate speech: The Court held that, if the advertisements had qualified as hate speech, that on its own would have justified their removal. However, at para. 71, the Court held that, even if the advertisements were not sufficient to give rise to a criminal conviction, the fact that they could incite hatred toward women who obtain abortions and their doctors “is a strong factor demonstrating that the transit manager’s decision was a reasonable and proportionate limitation on free expression”.

b. Other Charter values: The Court suggested that the rights of women under sections 7 and 15 of the Charter may be relevant, but that these issues were not argued in that case.

c. Accuracy: The Court held, at para. 73, that whether the advertisements were accurate or misleading could be relevant to the analysis, but that “[c]are must be taken in applying these criteria, because mere differences of opinion, or differences on the moral or social implications of various facts, do not amount to ‘inaccuracy’”.

d. Industry standards in advertising: The Court held that reliance on the Code or standardized policies and rulings made by Ad Standards can serve as an indication that the municipality engaged in the Doré balancing exercise.

e. Harm: The Court held, at para. 79, that freedom of expression protects “a certain amount of unpleasant, disagreeable, and even repugnant speech”. However, the Court also held, at para. 80, that “if it could be demonstrated that a form of expression was likely to cause harm to a segment of the audience beyond mere repugnance that would be a relevant factor in the Doré analysis”. The Court also accepted that the risk of harm to children would be a relevant consideration.
[57] Ultimately, in Grande Prairie, at para. 91, the Court accepted that there were “many reasons justifying the respondent’s rejection of this advertising: its hateful nature, its likely audience, its potential for harm, possibly its accuracy, its non-compliance with industry standards, and its extreme tone”. The Court went on to consider that the rejection of the advertisement was a minimal impairment in that case because the municipality did not make a blanket decision to reject all advertisements advocating against abortion; it was still open to the applicant in that case to submit an advertisement that complied with the municipality’s policy on advertising.

[58] In Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, 2018 BCCA 344, the Court of Appeal for British Columbia granted an order quashing a decision made by a transit authority that refused to post an anti-abortion advertisement. The advertisement in that case was essentially the same as in Grande Prairie. In that context, the Court found that the reasons provided by the authority were incapable of review because they did not take account of the applicant’s Charter rights. The Court remitted the matter back to the authority on the basis that it would not be appropriate for the Court to substitute its decision for the discretionary decision of the authority. It was up to the authority to engage in the proper balancing exercise. In reaching this conclusion, at para. 40, the Court explicitly rejected the approach taken by the Court of Appeal of Alberta in Grande Prairie to the effect that the Court, rather than the original decision-maker, could consider all objections that could have been made to the advertisements and conduct its own Doré/Loyola analysis.

[59] Similarly, in Lethbridge and District Pro-Life Association v Lethbridge (City), 2020 ABQB 654, the Court of Queen’s Bench of Alberta granted an application for judicial review of a decision refusing to post five anti-abortion advertisements on public buses. Some of the advertisements at issue in that case are similar to the three advertisements at issue in this case. In that case, the municipality had provided what the Court described as “detailed reasons” for rejecting the advertisements. The reasons the municipality provided for its decision are similar to those here, and include concerns over accuracy and the demeaning of women. The Court reviewed those reasons and found that they did not represent a proper balancing of the applicant’s section 2(b) Charter rights against the municipality’s legislative goals and other rights. In reaching this conclusion, the Court’s findings included the following:
a. The Court held that a review of the reasons provided by the municipality did not demonstrate that it had engaged in the necessary balancing required by the Doré/Loyola test. Specifically, there was nothing more than a passing mention about the applicant’s section 2(b) Charter rights.

b. The Court rejected the municipality’s reliance on the inaccuracy of the advertisements. The Court found that the advertisements expressed opinions rather than facts and also that “the right to freedom of expression does not support the contention that the expression must be widely accepted, accurate or scientifically verifiable”.

c. The Court accepted the municipality’s position that the public complaints it received were some evidence of harm caused by the advertisements. However, the Court suggested that the complaints were not sufficient to make finding of harm that would outweigh the applicant’s right to freedom of expression. In this regard, the Court engaged in a fairly granular review of the nature of the complaints.

d. The Court accepted the municipality’s position that compliance with the Code is relevant to the Doré/Loyola analysis. However, the Court found that the municipality’s reliance on the Code was excessive for two reasons. First, the Code itself stipulates that it does not apply to political speech, thereby suggesting that it provides minimal assistance in evaluating advertisement of this nature. Second, the municipality’s reliance on the Code and rulings by Ad Standards did not provide any evidence that the municipality performed the balancing and minimal impairment analysis required by Doré/Loyola.
[60] In Lethbridge, besides finding that the municipality failed to undertake the Doré/Loyola and that the decision was thereby unreasonable, the Court also found that there was a reasonable apprehension of bias on the part of the decision-maker. Ultimately, the Court remitted the matter back to the municipality to decide afresh with a strong suggestion that the matter should go before a different decision-maker.

[61] What emerges from the cases reviewed above is that the Doré/Loyola analysis requires an actual balancing and minimal impairment analysis. In conducting this analysis, the decision-maker can consider many factors, including the nature and impact of the advertisements, whether the advertisements are likely to cause harm, including by infringing other Charter values, and whether the advertisements comply with general advertising standards such as those set out in the Code. However, in considering these factors, the municipality must also weigh the advertisers’ right to freedom of expression under section 2(b) of the Charter and whether the proposed decision constitutes a reasonably minimal impairment of that right.
. Toronto (City) v. Ontario (Attorney General)

In Toronto (City) v. Ontario (Attorney General) (SCC, 2021) the Supreme Court of Canada reviews current Charter s.2(b) doctrine, focussing on the distinction between 'positive' and 'negative' claims:
(1) Principles of Charter Interpretation in the Context of Section 2(b)

[14] This appeal hinges on the scope of s. 2(b) of the Charter, which provides that everyone has the fundamental freedoms “of thought, belief, opinion and expression, including freedom of the press and other media of communication”. A purposive interpretation of Charter rights must begin with, and be rooted in, the text (Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, at paras. 8‑10) and not overshoot the purpose of the right but place it in its appropriate linguistic, philosophic and historical contexts (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). Yet, it is undeniable that s. 2(b) has traditionally been interpreted expansively (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 976; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, at pp. 765‑67). Indeed, s. 2(b) has been interpreted so broadly that the framework has been criticized for setting too low a bar for establishing a s. 2(b) limitation, such that any consideration of its substantive reach and bounds is generally consigned to the limitations analysis under s. 1 (K. Chan, “Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty” (2020), 6 C.J.C.C.L. 151, at p. 174, citing M. Plaxton and C. Mathen, “Developments in Constitutional Law: The 2009‑2010 Term” (2010), 52 S.C.L.R. (2d) 65). Following Irwin Toy, then, if an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of “expression” (p. 969). Further, if the purpose or effect of the impugned governmental action is to control attempts to convey meaning through that activity, a limit on expressive freedom will be shown (p. 972).

[15] Freedom of expression is not, however, presently recognized as being without internal limits. Activities may fall outside the scope of s. 2(b) where the method of the activity itself — such as violence — or the location of that activity is not consonant with Charter protection (Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 60 and 62).

[16] Further, and of particular significance to this appeal, s. 2(b) has been interpreted as “generally impos[ing] a negative obligation . . . rather than a positive obligation of protection or assistance” (Baier, at para. 20 (emphasis added), citing Haig v. Canada, 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995, at p. 1035). A claim is properly characterized as negative where the claimant seeks “freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage” (Baier, at para. 35 (emphasis added)). Such claims of right under s. 2(b) are considered under this Court’s Irwin Toy framework.

[17] In Baier, however, this Court explained that s. 2(b) may, in certain circumstances, impose positive obligations on the government to facilitate expression. Put differently, while s. 2(b) typically “prohibits gags”, it can also, in rare and narrowly circumscribed cases, “compel the distribution of megaphones” (para. 21, quoting Haig, at p. 1035). Hence the Court of Appeal’s statement in this case that “[f]reedom of expression is respected, in the main, if governments simply refrain from actions that would be an unjustified interference with it”, and that positive claims under s. 2(b) may be recognized in only “exceptional and narrow” circumstances (paras. 42 and 48 (emphasis in original)).

[18] Central to whether s. 2(b) was limited by the Province here is, therefore, the appropriate characterization of the claim as between a negative and positive claim of right. In Baier, this Court shielded positive claims from the Irwin Toy framework and subjected them to an elevated threshold. This is necessary, given the ease with which claimants can typically show a limit to free expression under the Irwin Toy test. An elevated threshold for positive claims narrows the circumstances in which a government or legislature must legislate or otherwise act to support freedom of expression. To consider positive claims under Irwin Toy would be to force the government to justify, under s. 1, any decisions not to provide particular statutory platforms for expression.

[19] The Baier framework is therefore not confined, as our colleague suggests, “to address[ing] underinclusive statutory regimes” (para. 148). This Court could not have been clearer in Baier that it applies “where a government defending a Charter challenge alleges, or the Charter claimant concedes, that a positive rights claim is being made under s. 2(b)” (para. 30). Were it otherwise — that is, were Baier’s application limited to cases of underinclusion — claims seeking the creation or extension of a statutory platform for expression would be considered under Baier while claims seeking the preservation of that same platform would be considered under Irwin Toy. This is illogical. Baier’s reach extends beyond cases of underinclusion or exclusion, and categorically limits the “obligation[s] on government to provide individuals with a particular platform for expression” (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 35). This reflects the separation of powers; choices about whether and how to design a statutory or regulatory platform are best left to the elected orders of the state.

[20] We should not be taken as suggesting that s. 2(b) is to be understood as conferring a right that is wholly positive or wholly negative. Many constitutional rights have both positive and negative dimensions and the Baier framework explicitly recognizes that this is so for s. 2(b). But the distinction between those positive and negative dimensions remains important when considering the nature of the obligation that the claim seeks to impose upon the state: a “right’s positive dimensions require government to act in certain ways, whereas its negative dimensions require government to refrain from acting in other ways” (P. Macklem, “Aboriginal Rights and State Obligations” (1997), 36 Alta. L. Rev. 97, at p. 101; see also A. Sen, The Idea of Justice (2009), at p. 282). For instance, would the claim, if accepted, require government action, or is the claim concerned with restrictions on the content or meaning of expression? And, were the claim rejected, would it deny the claimant access to a particular platform for expression on a subject, or would it preclude altogether the possibility of conveying expression on that subject? While in Haig, L’Heureux‑Dubé J. correctly noted that the distinction between positive and negative entitlements is “not always clearly made, nor . . . always helpful”, she nevertheless distinguished typical negative claims from those that might require “positive governmental action” (p. 1039). This is the distinction with which we concern ourselves here.

[21] This appeal therefore presents an opportunity to affirm and clarify the application of Baier to positive claims under s. 2(b). Baier remains good law in the context of s. 2(b). It adopts a framework for analysis first set forth in Dunmore, which itself decided a claim under s. 2(d) (freedom of association). We need not decide here whether Dunmore remains applicable to s. 2(d) claims (an open question, given the decisions of this Court in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3). It suffices here for us to affirm Baier as a useful and necessary framework in the context of positive s. 2(b) claims (although, as we will explain, we would simplify the framework).

(2) The Baier Framework

[22] The Baier framework applies if a claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutory or regulatory platform for expression (para. 30; Greater Vancouver Transportation Authority, at para. 35). Here, therefore, if the City’s claim would require the government or legislature to enact legislation or promulgate regulations, or otherwise act to provide a particular statutory or regulatory platform, it is advancing a positive claim (Baier, at para. 35).

[23] In Baier, this Court held that, to succeed, a positive claim must satisfy the three Dunmore factors: (1) Is the claim grounded in freedom of expression, rather than in access to a particular statutory regime? (2) Has the claimant demonstrated that lack of access to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom of expression? (3) Is the government responsible for the inability to exercise the fundamental freedom?

[24] These factors set an elevated threshold for positive claims. The first factor asks what the claimant is really seeking — in other words, whether the claim is grounded in freedom of expression or whether it merely seeks access to a statutory regime. Likewise, the second factor — which requires that the claimant establish a substantial interference with freedom of expression — sets a higher threshold than that stated in Irwin Toy, which asks only whether “the purpose or effect of the government action in question was to restrict freedom of expression” (p. 971; see also Baier, at paras. 27‑28 and 45).

[25] So understood, these factors can usefully be distilled to a single core question: is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? This is, to be clear, a single question which emphasizes the elevated threshold in the second Dunmore factor while encompassing the considerations of the first and third factors. Given what we see as the significant overlap among the factors — particularly between the first and second — this is, in our view, a salutary clarification of the Baier test, entirely consistent with this Court’s approach in Baier and Greater Vancouver Transportation Authority. To be clear, s. 2(b) does not remove the authority that a legislature has to create or modify statutory platforms, because it does not include the right to access any statutory platform in particular. However, when a legislature chooses to provide such a platform, then it must comply with the Charter (Haig, at p. 1041).

[26] If, therefore, a claimant can demonstrate that, by denying access to a statutory platform, the government has substantially interfered with freedom of expression or acted with the purpose of doing so, the claim may proceed. Despite being a positive claim, the claimant has demonstrated a limit to its s. 2(b) right, and — subject to justification of such limit under s. 1 — government action or legislation may be required.

[27] There is no suggestion here that the Province acted with the purpose of interfering with freedom of expression, and we therefore confine our observations here to the claim presented — that is, a claim that a law has had the effect of substantially interfering with freedom of expression. In our view, a substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is “effectively preclude[d]” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 33). While meaningful expression need not be rendered absolutely impossible, we stress that effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases (Baier, at para. 27; Dunmore, at para. 25). For example, a statutory reduction of the length of an election campaign to two days may well, as a practical matter, be shown to have the effect of constituting a substantial interference with freedom of expression. In such a case, meaningful expression may very well be found to be effectively precluded.

[28] The height of this bar of effective preclusion is demonstrated by Baier. There, legislation was amended to prohibit school employees from running for election as school trustees, and the Court — applying the Dunmore factors — concluded that no substantial interference with freedom of expression was demonstrated. The claim was grounded merely in access to a particular statutory platform governing school trusteeship, rather than a substantial interference with freedom of expression. And, in any event, there was no interference, substantial or otherwise, with the appellants’ ability to express views on matters relating to the education system. Their exclusion from the statutory scheme deprived them only of one particular means of such expression (paras. 44 and 48).


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