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Charter - s.2(b) Freedom of Expression (3). Kaplan-Myrth v. Ottawa Carlton District School Board
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
Here the court considers it's JR discretion to hear a Charter s.2(b) ['freedom of expression'] administrative issue - and usefully reviews the school board's (here, a tribunal) consideration of the same as "the Board was clearly alive to the Applicant’s right to free expression". Without endorsing the result, this may be an example of how a Charter admin matter 'should be done':[41] Judicial review of administrative decisions that engage the Charter are governed by the two-part approach set out by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and recently restated as follows:a. A reviewing court must first determine whether the decision limits Charter protections.
b. If so, the court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them and the government’s interests in a given case. If not, the decision is unreasonable: see Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para. 73. [42] There is no dispute between the parties with respect to the first part of the test. The parties agree that the decision of the Board, and the sanctions for the Applicant’s statements that the Board determined were contrary to the Code, limited the Applicant’s freedom of expression under s. 2(b) of the Charter.
[43] The Act limits freedom of expression, in that it requires all school board members to maintain focus on its objective and comply with the board’s code of conduct.
[44] The question before this court is whether the decision reflects a proportionate balancing of the various interests and rights as required under Doré. If not, the decision is unreasonable.
[45] The IC report deals with the Applicant’s Doré arguments directly and in considerable detail, including the following:a) At page 32 of the report, the IC specifically states, “I have set out the relevant Charter values and weighed them against the objectives of the Education Act and Code in deciding whether to recommend that the Board find a Code violation.”
b) At page 179 of the report it states,”[The Applicant], as each Trustee, has a right to share her opinion and participate on social media, she has a right to call out and denounce racism, antisemitism and all forms of discrimination, oppression and hate. However, disparaging the Code and the Code process is not appropriate criticism. The Code rules prohibiting actions that denigrate, intimidate and undermine approved policies of the Board are important in a free and democratic society to justify some limitation on Charter rights …. While elected municipal officials are free to vigorously debate and discuss matters of public interest, they must act reasonably and satisfy themselves as to the truth of any allegations.”
c) Finally, there are four pages of the report specifically dedicated to the issue of freedom of expression as a Charter-protected right and the limits imposed by the Code of Conduct. [46] The Applicant made the same Charter arguments in her extensive written submissions to the IC, which submissions were also before the Board for consideration, as well as in her submissions for the appeal before the Board.
[47] The Board held the required public meeting, at which the findings and recommendations of the IC were debated. After about one hour of deliberation, the Board voted. As set out above, the Board decided that the Applicant breached certain sections of the Code of Conduct. The Board concluded that the Applicant should be barred from attending one Board meeting and from sitting on certain committees for three months. The Board held a second public meeting to debate and vote on the Applicant’s appeal and confirmed its prior decision.
[48] The Code of Conduct’s stated purpose is to “establish a standard of conduct and a mechanism for managing inappropriate conduct” for trustees in discharging their duties. The Code of Conduct does not restrict trustees from expressing views but limits the manner in how they express those views. It requires civility and respect in expressing those opinions.
[49] The Applicant was sanctioned for how she spoke out; by targeting the Board and her fellow Trustees, including on social media, in a manner that “fueled continuing public confusion over the credibility of management of the Board and resulted in the discrediting and compromising of the integrity of the Board”.
[50] As in Ramsay v. Waterloo Region District School Board, 2023 ONSC 6508, the Board was clearly alive to the Applicant’s right to free expression, “which had been addressed at length by the Integrity Commissioner” as well as in the Applicant’s own comprehensive submissions: at para. 58.
[51] In Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 (CanLII), deference was afforded to the College in interpreting and applying its own Code of Conduct:The ICRC’s concerns related to the public interest in members of the College avoiding the use of demeaning or degrading language. In Trinity Western, at para. 38, the Supreme Court observed that a regulator’s interpretation of the public interest, based on its expertise, is owed deference. Similarly, in Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769, at para. 147, this Court gave “significant deference” to the expertise of a disciplinary committee to assess whether a member's conduct was relevant to their suitability to practice, as the members of the committee, which included members of the profession, were “well-situated to assess the harm to the profession, the public, and to the reputation of the profession” by the member's conduct. The ICRC is made up of a majority of professional members. Deference should also be afforded its assessment of the risk of harm to the public and the profession in this case: para. 45 [52] The OCDSB reviewed its own Code and expressed concern that the Applicant’s statements and behaviour may be inconsistent with its professional standards and could undermine public trust. The decision of the Board is to be given deference in these circumstances.
[53] As this Court recognized in Del Grande, the Board has a statutory obligation to enforce a minimum standard of conduct expected of its Trustees and is presumed to have expertise in enforcing that standard. It was entirely consistent with the Education Act for the Board to enforce its Code of Conduct against the Applicant. In its report, the IC stated as follows:[The Applicant], as each Trustee, has a right to share her opinion and participate on social media, she has a right to call out and denounce racism, antisemitism and all forms of discrimination, oppression and hate. However, disparaging the Code [of Conduct] and the Code process is not appropriate criticism. The Code rules prohibiting actions that denigrate, intimidate and undermine approved policies of the board are important in a free and democratic society to justify some limitation on Charter Rights … While elected municipal officials are free to vigorously debate and discuss matters of public interest, they must act reasonably and satisfy themselves as to the truth of any allegations. [54] The decisions represent a reasonable and proportionate balancing of the Applicant’s expressive rights with the Act’s objectives. Applying Doré, the Applicant has not shown a basis for this court to intervene. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers Charter s.2(b) 'freedom of expression':[10] As for ss. 2(b) and 15 of the Charter, we agree with the application judge that the TGEWA does not infringe the appellants’ free expression and equality rights. The Act does not suppress expression, directly or in its impact. Nor does the Act draw an adverse distinction cognizable under s. 15(1). The TGEWA attributes responsibility to the Sri Lankan state at the time of the civil war, not Sinhala-Buddhists, for what it deems a “Tamil genocide”. Anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators or supporters of the “Tamil Genocide” or otherwise, does so in error.
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(2) Freedom of Expression
i. General Principles and the Reasons Below
[124] Section 2(b) of the Charter provides that “everyone has … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
[125] To establish a breach of s. 2(b), a claimant must demonstrate that:i. the activity in issue has expressive content;
ii. the location and method of the expression are not of such a nature as to exclude it from s. 2(b) protection; and
iii. the purpose or effect of the impugned government action is to restrict freedom of expression.
Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at pp. 969, 971-72; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1, at paras. 14-15 (“Toronto (City) SCC”); and Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at para. 38. [126] The activity in this case is the appellants’ dissent concerning the occurrence of a Tamil genocide. There was no dispute – below and on appeal – that this activity has expressive content and that it is not excluded from s. 2(b) protection. The appellants’ s. 2(b) claims therefore hinge on the third step of the analysis.
[127] The application judge held that nothing in the TGEWA restricts or limits the appellants’ ability to dispute the occurrence of a Tamil genocide. She rejected the appellants’ argument that the Act made their expression less effective in any way that could breach s. 2(b). Citing this court’s decision in Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732, 146 O.R. (3d) 705, at para. 43, aff’d 2021 SCC 34, 462 D.L.R. (4th) 1 (“Toronto (City) ONCA”), she noted that the government has no “duty to promote, enhance, or even preserve the effectiveness of anyone’s political expression”.
[128] The application judge also rejected that there was a causal nexus between the TGEWA and the evidence of anti-Sinhalese bullying and “cancellation” that the appellants had adduced. The TGEWA does not authorize the exclusion of anyone from public discourse. If anyone relies on the Act for that purpose, they do so in error, and any recourse by the appellants in respect of such conduct would lie against those actors for their actions, not against Ontario for enacting the TGEWA: Thomas Christian Zaugg v. Ontario (Attorney General), 2019 ONSC 2483, at para. 50.
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[137] Government action restricts s. 2(b) in its purpose if its object is to “restrict the content of expression by singling out particular meanings that are not to be conveyed” or “if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content”: Irwin Toy, at pp. 974, 976. See also Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 38; Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, 124 O.R. (3d) 641, at para. 73.
[138] We have already determined that the dominant purpose of the TGEWA is to affirm and commemorate the Tamil-Ontarian community’s experience of the Sri Lankan Civil War. Nor do we see any indication that any other purpose of the TGEWA is to inhibit the free expression of members of the Sinhalese Ontario community. The Act’s text contains no provisions prohibiting or penalizing the form or content of, or access to, the appellants’ messaging. Nothing in the legislative debates suggests that the Legislature intended for the Act to be used to prohibit dissent.
The TGEWA does not impermissibly diminish the effectiveness of the appellants’ expression
[139] We reject the Coalition Appellants’ argument that the TGEWA diminishes the effectiveness of their expression in a manner that breaches s. 2(b).
[140] In Toronto (City) SCC, at para. 20, the Supreme Court explained that a s. 2(b) claim may have positive or negative dimensions. The distinction between positive and negative rights claims is important because “[i]n the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression … may rise to the level of a substantial interference with freedom of expression”; in contrast, “diminished effectiveness might be enough to amount to a limit of s. 2(b) in its traditional negative orientation”: Toronto (City) SCC, at para. 39.
[141] In this case, the application judge accepted, and no party challenges on appeal, that the appellant’s s. 2(b) claims were negative – they wanted to be free from the alleged restrictions that the TGEWA had imposed on their expression. However, in our view, the fact that the appellants assert a negative rights claim and that the TGEWA reflects a contradictory view to the one they express does not diminish the effectiveness of their expression.
[142] The Coalition Appellants’ reliance on Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, is misplaced. In that case, the court held that legislation imposing spending caps on political advertising infringed s. 2(b). McLachlin C.J. and Major J. (dissenting, but not on this point) explained that the caps were set so low as to prevent the claimants from disseminating their messaging through national media: at paras. 4, 9. The claimants could still express themselves, but the government had diminished their effectiveness by limiting the means available to convey their message.
[143] Similarly, in Bracken v. Niagara Parks Police, 2018 ONCA 261, 141 O.R. (3d) 168, this court held that a regulation preventing the claimant from displaying a sign that contained inflammatory political messaging in a park infringed s. 2(b). Miller J.A. observed that, while there are often many ways of communicating a similar sentiment, some methods of delivery are more effective than others. One can declare a similar sense of opposition loudly and with profanities or quietly and politely, but the former carries a power that “does not translate, without significant loss of meaning,” to the latter: Bracken, at paras. 57-58. By depriving the claimant of the ability to express himself forcefully, the government had limited him to communicating a less effective message.
[144] In each of the foregoing cases, there was some deprivation on the claimant that hindered their ability to communicate effectively. In Harper, by depriving the claimant of access to a certain type of advertising, the government had limited the reach of his messaging. In Bracken, by depriving the claimant of offensive language, the government had diminished the force of his messaging. Diminished effectiveness, untied from a deprivation, was not a standalone basis from which to establish a s. 2(b) claim.
[145] Turning to this appeal, the TGEWA imposes no deprivation on the appellants that diminishes the reach or force – or any other metric of effectiveness – of their messaging. Ontario has enacted a statute “encourag[ing]” – but not requiring – Ontarians to maintain their awareness of what Ontario calls a Tamil genocide, as well as other historical genocides. The Act does not diminish the effectiveness of the appellants’ expression in the manner contemplated by the s. 2(b) authorities.
The alleged exclusion of dissenting voices does not establish that the TGEWA breaches s. 2(b)
[146] The application judge did not expressly reject the appellants’ evidence that certain government actors had cited the TGEWA to exclude dissenting voices from public discussions concerning the Sri Lankan Civil War. Nevertheless, she rejected that this evidence could establish an infringement of the appellants’ freedom of expression. She held that the proper respondents to any Charter claims arising from these incidents were the impugned government actors, not Ontario.
[147] We agree. Where a government official applies legislation in breach of the Charter, the legislation is not the proper subject of challenge unless the Charter breach is an “inevitable” or “necessary” consequence of the legislation: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at paras. 29-30; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at paras. 125-39. The marginalization of dissenting voices is not an inevitable or necessary consequence of the TGEWA. The Act does not authorize such conduct, and while the Act’s preamble expresses disapproval of the Sri Lankan state, it does not require that those who support or associate with that state be silenced. Any government actor who relies on the Act to support acts of marginalization does so in error, and the appellants’ remedy for such conduct does not lie against Ontario for enacting the TGEWA.
[148] The application judge also did not expressly reject the appellants’ evidence describing incidents of anti-Sinhalese bullying during which the perpetrators did not reference the TGEWA. She found, however, that because the perpetrators did not cite the TGEWA as their impetus, there was no causal nexus between the TGEWA and their actions. She thus concluded that these incidents could not establish that the TGEWA breached s. 2(b).
[149] We again agree. The Coalition Appellants’ arguments about any alleged link between the TGEWA and the criticism of Sinhalese voices are speculative, tenuous and remote. The preamble to the TGEWA attributes responsibility for a Tamil genocide to the Sri Lankan state of the time. It does not attribute responsibility to Sinhalese generally, nor to Sinhalese Ontarians in particular.
[150] The government is entitled to enter the marketplace of ideas to counter expression with which it disagrees: Toronto (City) ONCA, at para. 43. That is so even though it is often reasonably foreseeable that the public will be less inclined to listen to the expression so countered. By enacting the TGEWA, Ontario has entered the marketplace of ideas. The Act expresses Ontario’s view that the Sri Lankan state committed a genocide. It does not require that anyone adopt that view. The appellants remain free at law to dispute the occurrence of a Tamil genocide, even if members of the Ontario government and public would prefer not to listen to them.
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