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Charter - s.2(b) Freedom of Expression (2). Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec
In Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec (SCC, 2024) the Supreme Court of Canada allowed an employer appeal from a successful lower court s.2(d) ['freedom of association'] Charter challenge, here against a Quebec law that prohibited managers (here, casino managers) from unionizing.
Here the court contrasts the analytic framework for s.2(d) ['freedom of association'] as opposed to that for s.2(b) ['freedom of expression'] challenges:(2) Section 2(b) and Section 2(d) of the Charter Have Different Frameworks
[38] As noted above, the majority of this Court in Toronto (City), at para. 21, a case involving freedom of expression under s. 2(b) of the Charter, had declined to consider and left open whether the Dunmore approach to s. 2(d) “remains applicable” after this Court’s decisions in Fraser and Mounted Police. I have addressed why this Court’s s. 2(d) jurisprudence already confirms that Dunmore remains good law and how this Court built on Dunmore in Fraser and Mounted Police.
[39] It is also useful to highlight briefly the different evolution of the frameworks under ss. 2(b) and 2(d) of the Charter to explain why the distinction between positive freedoms and negative rights is not relevant in determining the framework for s. 2(d) claims, even though it has been recently affirmed in Toronto (City) in the context of s. 2(b).
[40] At issue in Toronto (City) was whether legislation that reduced the number of wards in an ongoing municipal election infringed the electoral candidates’ right to freedom of expression under s. 2(b) of the Charter. A majority of this Court affirmed the distinction between the tests for positive freedoms and negative rights claims in the context of s. 2(b), citing the Court’s earlier decision in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, which had also applied the three Dunmore factors under s. 2(b) (Baier, at para. 30). In Toronto (City), the majority refined the framework for positive freedoms claims involving freedom of expression, distilling the framework to the single question of whether the “claim [is] 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” (para. 25).
[41] As a result, in the context of claims under s. 2(b) of the Charter, the threshold for proving positive freedom claims is substantial interference with freedom of expression (Toronto (City), at para. 25). However, the threshold for negative rights claims involving freedom of expression, as explained in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, is whether the purpose or effect of the government action merely restricts freedom of expression (Toronto (City), at para. 24, citing Irwin Toy, at p. 971, and Baier, at paras. 27-28 and 45).
[42] In the freedom of association context, by contrast, the threshold for both “positive” and “negative” freedom of association claims is the same: substantial interference (see Dunmore, at para. 25; Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25). There is not a more stringent threshold for positive rights claims under s. 2(d). For freedom of association claims, the “elevated threshold in the second Dunmore factor” (Toronto (City), at para. 25) of substantial interference already applies to all claims involving both positive and negative duties (Fudge, at pp. 545-46 and 550).
[43] Academic commentators have also noted that the standard of breach for a s. 2(d) claim “is strict, and bears little resemblance to the analogous tes[t] for expressive . . . freedom under section 2(b)” (J. Cameron and N. Des Rosiers, “The Right to Protest, Freedom of Expression, and Freedom of Association”, in P. Oliver, P. Macklem and N. Des Rosiers, eds., The Oxford Handbook of the Canadian Constitution (2017), 737, at p. 749; see also Faraday, at p. 353).
[44] In summary, the frameworks under ss. 2(b) and 2(d) have evolved differently in this Court’s jurisprudence. This helps explain why the distinction between positive freedoms and negative rights is not relevant in determining the applicable framework for s. 2(d) claims, even though it has been recently affirmed in the s. 2(b) context. . Carolyn Burjoski v. Waterloo Region District School Board
In Carolyn Burjoski v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers a JR against a school board decision to stop a "presentation to a Committee of the Whole Meeting", partly on Charter s.2(b) expression grounds:23. Burjoski submits that the WRDSB’s decision was unreasonable because the WRDSB failed to consider her Charter right to freedom of expression and failed to engage in a “robust balancing exercise”. She also claims that the WRDSB did not have the authority to find that Burjoski engaged in improper conduct, and the WRDSB did not have the authority to find that she breached the Human Rights Code.
24. Burjoski argues that the contents of her delegation were protected under s. 2(b) of the Charter and submits that the decision of the WRDSB required a robust explanation as a prerequisite. The decision cannot be fair or reasonable if the WRDSB did not engage in the balancing exercise as set out in the prevailing legal authorities (see: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395).
25. Burjoski submits that the WRDSB does not have the authority to end a presentation, or censor a presenter, that it deems or perceives to be a violation of the Human Rights Code. She submits that the only option available to the WRDSB, pursuant to the Education Act, is the removal of the presenter from a meeting. She argues that the Education Act does not provide the WRDSB with the authority to curtail speech on the basis that such speech is misconduct. She submits that the improper conduct contemplated by the Act must be something that interferes with the WRDSB’s ability to conduct a proper meeting and carry out its functions. She submits that, as such meetings are supposed to be open to the public, the decision to stop her delegation was unreasonable.
26. Burjoski also argues that the WRDSB did not provide adequate reasons to indicate how Burjoski breached the Human Rights Code, and therefore the decision was unreasonable.
27. I agree with the submission of the WRDSB that the decision was not unreasonable. The WRDSB has codified certain operational matters in its Bylaws that include procedures for delegations, for its committees and committee members, for public meetings, and for WRDSB meetings. The Bylaws identify duties of the Chair to maintain order in WRDSB meetings and, in particular, to preserve order and decorum and decide upon all questions of order, subject to an appeal to the WRDSB. The Bylaws also set out procedures for delegations to make submissions at meetings which include the requirement to make written submissions ahead of time that provide a summary of the points being presented.
28. The WRDSB has multiple policies that commit to providing working and learning environments free of discrimination and harassment as well as ensuring that individuals are treated with respect and dignity. The WRDSB policy on Equity and Inclusion identifies the WRDSB’s mandate to “identify and remove systemic and attitudinal barriers and biases to learning and employment opportunities that have a discriminatory effect on any individual” as well as the WRDSB’s duty “provide a safe, inclusive environment free from inequity, discrimination and harassment….” including by incorporating “the principles of equity and inclusive education into all aspects of its operations…” The Policy further acknowledges that all “partners in education” “have a critical role to play in leading the identification and removal of bias [and] discrimination.” The Policy commits to “the principle that every person within the school community is entitled to a respectful, positive school climate… free from all forms of discrimination and harassment.”
29. In the context of decisions made by elected decision-makers like the WRDSB, a high degree of deference must be given. The WRDSB trustees are accountable to their community and are well-versed in the goals of the education system and the boundaries of proper debate at meetings. School boards should be free to act as modern, democratic, dynamic legal personalities, provided only that there be some statutory foundation for, and no express statutory prohibition of, their conduct (see: Radio CHUM 1050 Ltd. v. Toronto (City) Board of Education, 1964 CanLII 164 (ON CA), [1964] 2 O.R. 207 (C.A.)).
30. The WRDSB made no finding that Burjoski breached the Human Rights Code. The Chair merely referenced that statute and expressed concerns that Burjoski’s comments were becoming problematic. It was reasonable for him to do so.
31. There is no duty to give formal reasons in a context where the decision was made by elected representatives pursuant to a democratic process. A school board’s reasoning may be deduced from the debate, deliberations and the statements of policy that give rise to the decision in question (see: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293). Accordingly, given that the decision was reached through a democratic process by elected trustees, it was not necessary for the WRDSB to give detailed formal reasons for the decision. In any event, the Chair made known to Burjoski the reasons for his ruling. In my view, the explanation when taken in context was adequate.
32. The written materials Burjoski submitted expressed her concerns about the WRDSB being transparent in how the “library cull” was to be conducted. Her written materials did not indicate she intended to address the WRDSB about specific books within the WRDSB collection. Burjoski was permitted to continue with her presentation after receiving a warning that she refused to abide. There is nothing preventing Burjoski from voicing her opinion on these library books in another forum. The decision was ultimately about Burjoski’s choice of words, which were, in the opinion of the WRDSB, derogatory and contrary to its Bylaws, the objectives of the Education Act, and potentially the Human Rights Code, as gender identity and expression are both explicitly listed as protected grounds under both the Education Act and the Human Rights Code.
33. In making its decision, the WRDSB sought to achieve, and did achieve, a reasonable balance between Burjoski’s Charter right to free expression and the objectives of its Bylaws, its Equity and Inclusion Policy, the Education Act. It prioritized the maintenance of a safe and inclusive school environment for its community members and was in accordance with the requirements of reasonableness as set out in Vavilov.
34. Accordingly, I consider the decision of the WRDSB to be reasonable and would not give effect to this ground of review. . Association for Reformed Political Action Canada v. Hamilton (City of)
In Association for Reformed Political Action Canada v. Hamilton (City of) (Div Court, 2023) the Divisional Court considered (and granted) a Charter s.2(b) freedom of expression JR, here involving with municipal bus advertising on the conceded basis of inadequate reasons.
In these quotes the court considers the Charter s.1 Dore/Loyola 'balancing' doctrine:[2] The Applicants sought judicial review of the City of Hamilton’s decision not to accept an advertisement that they wished to have posted on City transit vehicles. The proposed advertisement (the “Ad”), submitted in March 2021, was a banner which stated: “We're for women's rights”. Below the banner it stated: “Defendgirls.com”. The Ad had four photographs, which were captioned, respectively: Hers. Hers. Hers. And Hers. The four photographs were of: (a) a smiling woman in her twenties; (b) a smiling girl around 11 years old; (c) a smiling girl around 6 years old; and (d) an ultrasound scan of a fetus in a pregnant woman.
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[7] ... In their Notice of Application, the Applicants submitted, among other things, that the reasons provided for the City’s decision were unreasonable and that the decision violated s. 2(b) of the Canadian Charter of Rights and Freedoms[1], which protects freedom of expression. ...
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The City’s Concession and the Appropriate Remedy
[8] About a week prior to the case being heard, the City conceded that the reasons it provided for rejecting the Ad made no reference to the balancing of the Applicants’ right to freedom of expression against the City's statutory objectives, as required by the Supreme Court of Canada’s decisions in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 ("Doré"), and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 ("Loyola"). It was only in its after-the-fact affidavit that the City asserted that it had performed the balancing of interests.
[9] The City acknowledged, as stated by this Court in Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43, 160 O.R. (3d) 574 (Div. Ct.), at para. 74, that "... it is improper for the City to try to supplement its reasons for decision for the purpose of the application for judicial review by having the decision maker state after the fact that she considered the matters she was required to consider at the time she made the decision in the absence of any indicia that she did so at the time of the decision.”
[10] The City submitted that just as this Court in Guelph declined to consider what may have been in the mind of the decision maker but was not articulated, the Court must decline to consider what the City may have considered but did not communicate. As its reasons were inadequate, the City submitted that the appropriate course is to remit the matter back to perform a robust Dore/Loyola analysis and to prepare the required reasons . As the City noted, the result of a proper, robust analysis is not a foregone conclusion. . Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal considered a plaintiff's appeal from a successful SLAPP defendant's dismissal motion [under CJA 137.1], brought in response to the defendants being sued for defamation and related torts for bringing an municipal motion to stop advertising with the appellant's newspaper.
In these quotes the court considers a challenge to the CJA SLAPP regime under s.2(b) of the Charter ['freedom of expression']:Section 2(b) of the Charter of Rights and Freedoms
[37] The appellants argued that the Notice of Motion itself (which the appellants keep analytically distinct from the amended motion that was passed by City Council) was legally defective in that by introducing the motion to City Council Wong-Tam and Ainslie breached the appellants’ rights to freedom of expression under s. 2(b) of the Charter. The appellants thus characterized the Notice of Motion itself as a nullity, and the act of introducing it as an illegality. Although the appellants did not seek any declaratory relief, they argued that the illegality of the Notice of Motion – and the respondents’ awareness of its illegality – provided a foundation for their non-defamation tort claims (misfeasance in public office, inducing breach of contract, and wrongful interference with economic relations). As well, the illegality of the Notice of Motion was said to undermine the defences to both the defamation and non-defamation torts, and factor in the final assessment of the overall proportionality of the action.
[38] The appellants did not provide the court with any authority establishing that bringing a motion to city council for a vote is government action to which the Charter applies. Nor did they construct an argument from first principles of s. 32 jurisprudence to provide a basis for that conclusion.
[39] The appellants have thus failed to satisfy their burden of establishing that any Charter right is in issue in this litigation. The City of Toronto is not a defendant, there is no government entity against whom the appellants seek relief, and as explained below, the appellants have not met their onus of establishing that the respondent trustees and councillors, as individuals who hold public offices, owe any Charter duty to them. . Lauzon v. Ontario (Justices of the Peace Review Council)
In Lauzon v. Ontario (Justices of the Peace Review Council) (Ont CA, 2023) the Court of Appeal considered an appeal of a JR of a 'Justices of the Peace Review Council' order that removed the JP from office for disciplinary reasons related to an article she wrote critical of Crown prosecutors and the bail courts. In these quotes the court considers a citizen's (here a JP's) s.2(b) administrative Charter expressive rights, under the Dore/Loyala doctrine:[44] In Moreau-Bérubé, the Supreme Court instructed judicial councils to be careful in discipline for judicial speech because it engages the core tenets of judicial independence:The Judicial Council has been charged by statute to guard the integrity of the provincial judicial system in New Brunswick. In discharging its function, the Council must be acutely sensitive to the requirements of judicial independence, and it must ensure never to chill the expression of unpopular, honestly held views in the context of court proceedings. [Emphasis added.][23] [45] While Moreau-Bérubé related to speech from the bench, in my view, the same concern about chilling effects exists for JP Lauzon’s article. This concern is of particular importance when the impugned speech relates to the administration of justice, on which scholars and judges agree that judges must have more latitude to speak out. Sopinka J., speaking extrajudicially, observed that “[i]f a matter is troubling a judge and relates to the work of the court, a public discussion will often serve not only to clear the air, but will also result in a happier, more effective judge.”[24] The Canadian Judicial Council has expressed the view that “members of the Judiciary should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the courts” (emphasis added).[25]
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(3) The proportionality analysis required by Doré
[137] The remaining question is whether the majority took due account of JP Lauzon’s Charter rights and related constitutional elements in the proportionality analysis required by Doré.
[138] I first restate Doré in light of the Supreme Court’s decisions in Loyola High School v. Quebec (Attorney General)[65] and Law Society of British Columbia v. Trinity Western University,[66] and then consider whether the Hearing Panel applied Doré properly.
[139] I noted above that the Hearing Panel did not err in taking the Doré approach to the application of s. 1 of the Charter rather than R. v. Oakes, on the basis that the differences between the two approaches would make no difference to the outcome of this case. This is because the disposition decision cannot survive the robust proportionality review Doré demands.
(a) Doré restated
[140] It is axiomatic that “[a]ll law and law‑makers that touch the people must conform to” the Charter.[67] The Charter applies in assessing the constitutional validity of both laws and of decisions made by officials and statutory tribunals discharging statutory mandates, including the Hearing Panel.[68]
[141] Section 2 of the Charter states, “[e]veryone has the following fundamental freedoms … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. No exception is made for judges or justices of the peace. The cases relating to judicial discipline for ethical and other lapses recognize this. Accordingly, the Hearing Panel was required to take due account of JP Lauzon’s Charter rights at every step of its work, in this instance, in both the merits phase and the disposition phase.
[142] At issue in Doré was whether the Barreau du Québec had violated lawyer Gilles Doré’s freedom of expression under s. 2(b) of the Charter by penalizing him with a reprimand for harshly criticizing a Superior Court judge. The Court of Appeal of Québec found that Mr. Doré’s freedom of expression had been limited by the Barreau du Québec’s decision. The live issue was whether that limit could be demonstrably justified, as was required by s. 1 of the Charter, according to the principles of a free and democratic society. In answering that question, the Court of Appeal of Québec applied the methodology developed in in R. v. Oakes[69] for assessing the reasonableness of a limit on a right or freedom that has been prescribed by law, and upheld the penalty. The Oakes test, has four aspects:1. Is the legislative goal pressing and substantial?
2. Is there proportionality between the objective of the legislation and the means chosen to achieve it? This question is assessed by three enquiries:
a. Rational connection: is there a causal link between the impugned measure and the pressing and substantial objective?
b. Minimal impairment: does the limit impair the exercise of the right or freedom more than is reasonably necessary to accomplish the objective?
c. Proportionate effects: is there proportionality between the deleterious and salutary effects of the law? [143] The Supreme Court dismissed Mr. Doré’s appeal. However, the court, in reasons written by Abella J., developed what it called the “administrative law approach” in order to adapt the existing Charter rights limitation analysis in Oakes to the review of a type of government action that is categorically different from passing a law: discretionary administrative decision-making.
[144] Because Mr. Doré had not challenged the constitutionality of the provision in the Code of Ethics under which he was prosecuted, Abella J. found that the analysis could therefore traverse to a modified version of the three-part proportionality inquiry.[70]
[145] In place of the Oakes test, Abella J. prescribed a two-step process in which “the decision-maker should first consider the statutory objectives”,[71] and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”.[72] This expectation was later enhanced in Loyola and Trinity Western: tribunals must carry out “a robust proportionality analysis consistent with administrative law principles”,[73] one that works “the same justificatory muscles” as the Oakes test, not a “watered-down version”.[74] It is noteworthy that Abella J. added the word “robust” and emphasized it in Loyola when she reprised the Doré framework. This word was clearly meant to be taken seriously, and I do.
[146] The majority in Trinity Western said: “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.”[75] This language built on Abella J.’s formulation in Loyola, where she said that, under Doré, “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 she or he is obliged to pursue”.[76]
[147] When a tribunal is making a disposition or setting a penalty, the Doré proportionality analysis of a rights limitation is fully engaged. As the Supreme Court also recognized in Groia, at para. 113, when a professional misconduct finding engages expressive freedom, the tribunal must likewise proportionately balance its statutory objective with that freedom. In this case, the Hearing Panel’s fullest discussion of Doré is found in the merits reasons, and it is not revisited in the disposition reasons. This is because the Panel invoked Doré in properly dismissing JP Lauzon’s application for a stay under s. 24(2) on the basis that her s. 2(b) Charter right to freedom of expression was limited by the proceedings. But the Panel did not adequately attend to the application of Doré in the disposition phase.
[148] What does a “robust proportionality analysis” involve? In my view, the analysis must advert to the proportionality analysis developed by the Supreme Court in Oakes for cases in which a government actor is seeking to limit a Charter right. The proportionality analysis from Oakes asks whether the limit on the right is proportionate in effect to the public benefit conferred by the limit.[77] Two aspects must be carefully assessed: the negative effects on the individual whose rights are engaged, and the positive effects on the public good. Using the court’s own words, this analysis is to take “full account of the ‘severity of the deleterious effects of a measure on individuals or groups’”,[78] that is, whether the “benefits of the impugned law are worth the cost of the rights limitation”,[79] or, more precisely, whether “the deleterious effects are out of proportion to the public good achieved by the infringing measure”.[80] This is to be a “broader assessment”.[81] These principles apply with necessary modifications to tribunal decisions such as the disposition decision in this case. . Société Radio-Canada v. Canada (Attorney General)
In Société Radio-Canada v. (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal (on consent) from a CRTC ruling which found that the SRC (the French counterpart of the CBC) had used offensive language, being the racist 'N'-word. The appeal ground was "that the CRTC exceeded its jurisdiction and failed to take into account the applicable legal framework as well as the SRC’s freedom of expression as guaranteed by the Charter" [para 19].
In these quotes the court considers the administrative approach [Dore/Loyola] to Charter s.2(b) issues:[36] Finally, the amicus maintains that the CRTC complied with the balancing obligation imposed on it by the Charter. In his view, the only issue for this Court to decide is whether the CRTC was “alive” to this question (response of the amicus, paras. 30, 81, 83–84, 86 and 95, citing Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré], paras. 55–56; and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 [Trinity Western University], paras. 55–56). This, according to the amicus, is the case; he submits that since the dissenting members considered the SRC’s freedom of expression, it should be inferred that the majority did the same (response of the amicus, para. 87). Even though this is said nowhere, he also invites the Court to read the decision of the CRTC as if the majority had endeavoured to show that the infringement of the SRC’s freedom of expression was justified in a free and democratic society (response of the amicus, paras. 88–94).
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Did the CRTC conduct the balancing exercise required by the Charter as construed and applied in Doré, Loyola and Trinity Western University?
[57] The second issue is whether the CRTC conducted the proportionate balancing exercise required by the Charter as set out in Doré, Loyola and Trinity Western University. This issue must be considered together with the duty imposed on the CRTC by paragraph 2(3)(a) of the Act to construe and apply the Act in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasters, including the SRC (see subsection 46(5) of the Act).
[58] The amicus does not challenge the fact that the decision, because it circumscribes how the “N‑word” may be used on the air, restricts the SRC’s freedom of expression, and therefore engages paragraph 2(b) of the Charter. It follows that the CRTC had a duty to balance the opposing interests and “ask how the Charter value at issue will best be protected in view of the statutory objectives” (Doré, para. 56; see, to the same effect, Loyola, paras. 4 and 39; and Trinity Western University, para. 80). The amicus, however, maintains that the CRTC discharged this duty. With respect, this argument must fail.
[59] First, the decision makes no mention of the SRC’s freedom of expression. Its structure revolves exclusively around the issue as to whether the broadcast of the “N‑word” on the air is consistent with the Canadian broadcasting policy.
[60] Second, this silence is not remedied by the record as constituted, which in no way suggests that the majority was “alive” to its duty to ensure that the SRC’s freedom of expression was not restricted more than necessary in order to attain the objectives contemplated by the Act (compare Trinity Western University, para. 55, where the evidence showed that the decision-makers were alive to the Charter issue for having debated it at length in the process leading to the decision).
[61] Contrary to what the amicus asserts, the fact that the dissenting members addressed the SRC’s freedom of expression in detail makes the majority’s silence on this issue even more difficult to explain. These opinions are more in line with the Attorney General’s thesis that the majority was not alive to the issue pertaining to the SRC’s freedom of expression, which explains why it did not conduct the balancing exercise mandated by the Charter.
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