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Charter - s.7 'Life, Liberty and Security of the Person' (2). Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
In these quotes the court considers Charter s.7 ['life, liberty and security of the person'] arguments in favour of the funding:[87] Section 7 of the Charter requires that laws or state actions that interfere with life, liberty or security of the person conform with the principles of fundamental justice. The analysis proceeds in two steps: (1) is there a deprivation of one of life, liberty or security of the person? and (2) if so, is the deprivation in accordance with the principles of fundamental justice?[30]
Applicants’ Submissions on s. 7
[88] The Applicants submit that the liberty interest of the young Applicants is engaged because without ABA, it is likely that they could not make “inherently private choices” and puts at risk the ability to live a safe and dignified life.
[89] The Applicants submit that their security was breached in the following ways:1) Cutting off of the Funding returned the young Applicants to lives full of danger as submitted above;
2) Cutting off the Funding caused the parent Applicants to suffer a number of adverse health consequences, as delineated above. s. 7 Analysis
[90] In dismissing the plaintiffs’ s. 7 argument in Wynberg, the Court of Appeal held:[T]he existing jurisprudence does not permit us to interpret s. 7 of the Charter as imposing a constitutional obligation on the appellant to ensure that every school-age autistic child has access to specific educational services…In this case, the appellant has chosen to provide the IEIP to children up to the age of six. We have concluded that this choice, standing alone, does not create a constitutional obligation on the appellant to provide the same or similar programming on a more widespread basis.[31] [91] The Court of Appeal in Wynberg found that the plaintiffs had not shown that they had been denied appropriate services to which they were entitled because they were not provided with IBI consistent with the IEIP Guidelines.[32] It found that while many if not most parents of autistic children will be unable to afford to purchase such services for their children, there nevertheless was no state deprivation because there was no law restricting the applicants’ ability to do so.[33]
[92] The caselaw is clear that s. 7 of the Charter does not confer a constitutional right to a certain level of funding for health or social benefits. The Applicants are either accessing, or have been given the opportunity to access, services, supports and/or funding through the mainstream adult developmental services system.
[93] The guarantee under s. 7 is often engaged in connection with “the state's conduct in the course of enforcing and securing compliance with the law.”[34] In rare circumstances, the courts have extended s. 7 rights to legislation or government action unrelated to adjudicative or administrative proceedings. However, in those instances, the law or government action at issue has consisted of a state compulsion or prohibition that threatens the rights to life, liberty or security of the person (e.g. a state prohibition on obtaining private medical insurance,[35] a state prohibition of activities that increase the safety of legal prostitution,[36] a state prohibition on the erection of temporary overhead shelters overnight).[37] No case has recognized a positive constitutional requirement for state funding to pay for services available to purchase.
[94] It is well-established that the protection offered by s. 7 does not “include and require provision for the economic satisfaction of basic human needs.”[38] Nor does it include a right to access services that the state does not publicly fund.[39] Where the state chooses to provide a service, s. 7 does not impose a required level: “[n]othing in the existing jurisprudence suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty, and security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these.”[40]
[95] Courts have consistently rejected claims under s. 7 for more or different government provided funding, social and/or health services. In Flora v. Ontario (Health Insurance Plan), the Ontario Court of Appeal upheld the province’s refusal to reimburse Mr. Flora for a life-saving liver transplant he received outside of Canada.[41] As in Wynberg, the Court held that Charter s. 7 does not impose a constitutional obligation on government to fund or allocate more funding to medical treatments beyond those already covered by the province's health insurance scheme.[42] This was so despite the undisputed findings that the treatment Mr. Flora received outside of Canada was unavailable in Ontario and was required to save his life.[43]
[96] In Sagharian v. Ontario (Education), the Court of Appeal struck out a s. 7 Charter challenge to the provision of autism and education services to children in Ontario as having no reasonable prospect of success. The Court held that the alleged deficiencies in Ontario's provision of services for school-aged children with autism – namely, wait times for ABA services and the alleged lack of ABA services in public school settings – had no reasonable prospect of forming the basis of a s. 7 Charter claim.[44]
[97] Additional lower court decisions confirm that s. 7 of the Charter does not place a positive obligation on the state to ensure that each person enjoys a particular standard of life, liberty or security of the person. This includes where the government previously offered a certain level or kind of service or funding to eligible persons and subsequently reduces or changes the benefit.[45]
[98] The Court of Appeal’s recent decision in Leroux v. Ontario[46] has not expanded s. 7 of the Charter. The Court affirmed the decision to certify a class action, meaning only that the s. 7 claims were not "doomed to fail." The proposed representative plaintiff was assessed under the mainstream adult developmental services system but had not received any supports for which she was approved. The Court concluded the class “may be able to make out a s. 7 deprivation that stems from delay in receiving essential financial benefits for which they are statutorily entitled.”[47] It was this aspect of the s. 7 claim that the Court said might not be doomed to fail, although the Court doubted the prospects for the claim's success on the merits. The present case is being adjudicated on the merits, not on the test for a motion to strike or for certification of a class proceeding.
[99] The present situation is distinguishable from Leroux. Many of the Applicants who applied for mainstream services have received supports and funding through that system. Other Applicants have not applied for mainstream services. The Charter submissions set out at paragraphs 121-131 of the Applicants Save Deskin factum make it clear that they are dissatisfied with the level and kinds of service available within the mainstream adult developmental system. This is the kind of claim that the Court of Appeal in Leroux would have dismissed as doomed to fail.[48]
[100] With respect to the Applicant parents' claim that their Charter rights were infringed by the alleged need to increase their work hours, take time off, retire early or resign their jobs as a result of the Funding being discontinued, courts have long held there is no s. 7 Charter right to work or to practice a profession. [49]
[101] There was no breach of the Applicants’ s. 7 Charter rights. . Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
In these quotes the court considers whether Charter s.7 ['life, liberty and security of the person'], 9 ['detention'] and 12 ['cruel and unusual treatment'] apply to the case:Analysis of Whether there was a Breach of Michael Deskin’s Charter rights under sections 7, 9 and 12
[107] Michael Deskin was an involuntary patient in the psychiatric ward of St. Joseph’s Hospital for approximately two weeks in November 2019 after which time the hospital determined that he was fit for discharge. Michael’s family did not accept the hospital’s discharge of Michael for the next 3 months, resulting in Michael remaining in hospital despite his suitability for discharge.
[108] The evidence is that had the Deskins been willing to consider a group home, it is very likely Michael would have had a residential placement by the time of the Decision. Michael’s admission to St. Joseph’s Hospital was subject to the processes under the Mental Health Act that have been found to conform with ss. 7, 9 and 12 of the Charter.[55] The Deskins did not attempt to arrange a transfer to a group home from the hospital through December 2019 and January 2020. Michael was also receiving 50 hours of ABA per week funded by the Ministry at the time he was involuntarily committed.
[109] It is not the case that any involuntary admission under the Mental Health Act or detention under the Criminal Code is unconstitutional. The necessary elements of such a claim have not been advanced. The Deskin Applicants cannot use this application for judicial review to launch a collateral attack on processes occurring under the Mental Health Act. Speculation regarding future admission or incarceration cannot ground their Charter claim.
[110] The Deskin Applicants rely on Canadian Doctors for Refugee Care v. Canada (Attorney General)[56] [Canadian Doctors] where the Federal Court held that the Government of Canada violated s. 12 rights when it withdrew healthcare coverage for certain categories of refugee claimants. The Deskin Applicants argue that the present case is similar, in that the province has withdrawn support for Michael, leaving him without treatment and facing the prospect of indefinite involuntary detention.
[111] The facts in Canadian Doctors are distinguishable from the situation in this matter. The impugned measures were specifically designed to encourage unsuccessful refugee claimants to leave the country quickly once their claims were rejected by denying them health benefits that were available to other refugee claimants, permanent residents and temporary foreign workers. In contrast, here, the Deskin Applicants are seeking to maintain discretionary funding that is not available to other eligible people.
[112] At issue in PHS[57] (which the Applicants rely upon in their submissions) was the Controlled Drugs and Substances Act (“CDSA”)[58] which prohibits possession and trafficking of controlled substances subject to an exemption at the discretion of the Minister of Health, for medical and scientific purposes. The Court found that the staff’s minimal involvement with clients’ drugs may bring them within the legal concept of illegal possession of drugs, contrary to s. 4(1) of the CDSA. As such, the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA engages the liberty interests of staff.[59] The threat to the liberty of the staff in turn impacts on the s. 7 rights of clients who seek the health services provided by the clinic.
[113] The Court in PHS found that the Minister’s decision not to grant an exemption to the lifesaving and health-protecting services offered at the drug clinic, in the special circumstances of this case, contravened the s. 7 rights of the claimants. The court held that where a decision made pursuant to valid legislation could subject a person to detention, it will engage their s. 7 Charter rights.[60] The court found that the Minister's exercise of their discretion violated the claimants’ Charter rights. The Court further held that: “The minister cannot simply deny an application for an exemption on the basis of policy simpliciter, insofar as it affects Charter rights, his decision must accord with the principles of fundamental justice.”[61]
[114] PHS is a very different fact scenario than this case. It falls within the dominant line of s. 7 cases dealing with a deprivation as a result of a person’s interaction with the criminal justice system. There is nothing in the CYFSA or SSPPDA comparable to the penalty of imprisonment and the discretion to exempt that the Court in PHS considered under the CDSA.
[115] The Deskin Applicants analogize Michael’s situation of being segregated from his family, community, and the rest of the hospital population when he was involuntarily detained to the circumstances in the case of Francis v. Ontario (Francis)[62]. In Francis, the Court considered the impact of administrative segregation on the Seriously Mentally Ill (“SMI”) Inmates defined as those that manifested themselves in significant impairments and/or chronic and severe suicidal ideation or self-injury. The Court of Appeal affirmed the motion judge’s finding that the s. 7 and s. 12 Charter rights of the SMI Inmates were breached when those inmates were placed in administrative segregation.
[116] Michael Deskin’s situation when at St. Joseph’s Hospital cannot be analogized to the administrative segregation in Francis. The evidence is that the family took steps to have Michael admitted to the hospital and then he remained for a longer period after the hospital was ready to discharge him because the family refused the discharge. Rather than being administratively segregated, the evidence is that he had day and night care including some of the ABA team that had supported him in the past.
[117] The Deskin Applicants have not established that Michael’s Charter rights were breached. As a result, it is unnecessary to consider whether the Decision comports with the principles of fundamental justice. Had I found a Charter breach, I nevertheless would have found that the discontinuation of the Funding and transition to mainstream services reasonably furthers, and is proportionate to, the objectives of promoting equity and transparency in access to publicly funded services. It therefore comports with the principles of fundamental justice. . Covant v. College of Veterinarians of Ontario
In Covant v. College of Veterinarians of Ontario (Ont CA, 2023) the Court of Appeal considered (with leave) a further appeal from a s.35 Veterinarians Act Divisional Court appeal, which was in turn an appeal from a College of Veterinarians of Ontario (CVO) Discipline Committee's order that the appellant had "engaged in professional misconduct by re-selling large quantities of veterinary drugs to human pharmacies, contrary to a newly amended regulation".
In these quotes the court considers (and dismisses) a Charter s.7 challenge (here to an amendment to a Veterinarians Act which restricted re-sale of veterinarian drugs to pharmacists for human use) on the grounds that no 'life, liberty and security of the person' Charter s.7 rights were infringed by professional regulation:[9] The proceedings before the Committee were protracted. Dr. Covant advanced various pre-hearing claims for relief, all of which were unsuccessful. The only one that is pursued on this appeal stems from a motion to strike down s.33(2)(d) of the Regulation on the basis that the process leading up to the passing of the amendment was invalid, insufficient notice of the amendment was provided to members of the College, and that the amended provision is ultra vires, vague, and overbroad.
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(c) Discussion
[33] Dr. Covant submits that the Divisional Court erred in applying the doctrines of vagueness and overbreadth. During the hearing, the juristic basis of Dr. Covant’s claims was explored.
[34] In written materials before the Committee and the Divisional Court, and in oral submissions before this court, the submissions made on Dr. Covant’s behalf were grounded in the application of s. 7 of the Charter. However, the protection of s. 7 of the Charter is not triggered unless there is a deprivation of “life, liberty, or security of the person.” Only then may a person claim the protections of the “principles of fundamental justice”, as defined in the jurisprudence.
[35] Generally speaking, s. 7 does not protect economic interests. In particular, “section 7 does not protect the right to practise a particular profession”: see Hamish Stewart, Fundamental Justice, 2nd ed. (Toronto: Irwin Law, 2019), at p. 107. This was the holding of this court in Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1, a case involving the mandatory revocation of a licence to practice medicine as result of the “sexual abuse” of a patient, as defined under s. 51(5) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
[36] Mussani challenged the validity of this provision under ss. 2(d), 7, and 12 of the Charter. Addressing the general scope of Charter protection, Blair J.A. said, at paras. 41 and 43:The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession…[Citations omitted.]
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I am satisfied, therefore, that there is no constitutionally protected right to practise a profession, and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter. [37] More specifically, Blair J.A. held that professional disciplinary proceedings do not trigger the “security of the person” or “liberty” arms of s. 7: at paras. 49-60. On an alternative basis, Blair J.A. considered the submissions of the parties on vagueness and overbreadth, finding that the impugned provision did not violate either principle of fundamental justice: at paras. 61-85.
[38] The holding in Mussani, and in the related case of Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, 98 O.R. (3d) 561 (C.A.), were challenged in Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, leave to appeal refused, [2021] S.C.C.A. No. 350. This court upheld both decisions. Huscroft J.A. wrote for a five-judge panel: “[p]rofessional discipline is stressful, to be sure, but it does not give rise to constitutional protection on that account”: at para. 44. The court held that neither professional disciplinary proceedings, nor the sanctions that may flow from them, engage the right to liberty or security of the person in s. 7: Tanase, at para. 42. See also Shaulov v. Law Society of Ontario, 2023 ONCA 95, 481 D.L.R. (4th) 283, at para. 12.
[39] The applicability of the s. 7 Charter, and this court’s holding in Tanase (and related cases), were not addressed by either party in their written submissions. Nor was Tanase considered by the Divisional Court. Consequently, following the hearing, the parties were invited to make written submissions on the applicability of Tanase in the context of this case.
[40] Even though the practice of veterinary medicine is not governed by the Regulated Health Professions Act (Schedule 1 – Self Governing Health Professions), both parties accept that the principles in Tanase apply in the context of veterinary medicine, which is a regulated public interest profession in Ontario. . Canadian Council for Refugees v. Canada (Citizenship and Immigration)
In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered the 'safe third country' refugee scheme under a Charter s.7 ['life, liberty and security of the person'] challenge. These quotes [at paras 118-164] address the 'fundamental justice' aspect of s.7 ["... the right not to be deprived thereof except in accordance with the principles of fundamental justice."], particularly 'which' fundamental justice 'tests' apply in an administrative context.
. Canadian Council for Refugees v. Canada (Citizenship and Immigration)
In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered the 'safe third country' refugee scheme under Charter s.7 ['life, liberty and security of the person']:VII. The Section 7 Claim
[56] To establish a violation of s. 7 of the Charter, challengers must first show that the impugned legislation deprives them of life, liberty or security of the person. This analysis asks whether the legislation “engage[s]” those interests, in the sense that it causes a limitation or negative impact on, an infringement of, or an interference with them (Carter, at para. 55; see also Bedford, at paras. 57‑58, 90 and 111). A risk of such a deprivation suffices (see, e.g., Carter, at para. 62; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 89; Suresh, at para. 27). Second, challengers must show that the deprivation is not in accordance with the principles of fundamental justice.
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[60] This Court has long recognized that, to succeed, a Charter claim must show a causal link between state action and the violation of the relevant right or freedom (see, e.g., Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 447, per Dickson J., as he then was). In Bedford, this Court held that a “sufficient causal connection” must be established, which does not require that the impugned state action “be the only or the dominant cause of the prejudice suffered by the claimant” (para. 76). As a result, the mere fact that other forms of state action may also have a causal connection to the harms alleged does not mean that a challenge to legislation — such as s. 159.3 of the IRPR — is improperly constituted. . Canadian Council for Refugees v. Canada (Citizenship and Immigration)
In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered the 'safe third country' refugee scheme under Charter s.7 ['life, liberty and security of the person']. In these quotes the court considers the role of ameliorative/curative/preventative provisions (that is, provisions that are targeted at reducing Charter violations) when a Charter challenge is advanced, and the related s.1 'reasonable limits' consideration:(1) The Relevance of Preventative and Curative Measures to the Section 7 Challenge
[62] Provisions in a complex, interrelated legislative scheme should not be viewed in isolation. Generally, the constitutionality of these provisions can only be evaluated by considering the entire scheme. However, this did not preclude the appellants from targeting s. 159.3 of the IRPR.
[63] When a Charter challenge targets a provision in an interrelated legislative scheme, the potential impact of related provisions, including those that may serve to “prevent or cure any possible defects”, must be reviewed (C.A. reasons, at para. 58(a) (emphasis added)). The success or failure of a Charter claim may turn on arguments or evidence related to preventative or curative provisions. But this should rarely preclude consideration of whether life, liberty or security of the person under s. 7 are “engaged”.
[64] Legislation often implicates interests that s. 7 protects. At times, this will result from broad provisions that would — taken on their own — have constitutionally relevant effects on life, liberty or security of the person. However, legislatures can include related provisions within a scheme that temper those effects. When these measures are part of an integrated legislative whole, they must be accounted for when assessing the constitutionality of rules of general application.
[65] In PHS, for example, this Court considered the linkages between a general rule and provisions related to it. At issue was, among other things, a general statutory prohibition on possession of controlled substances except as authorized under the regulations. The statute gave the Minister the power “to issue exemptions for medical or scientific reasons, or for any purpose the Minister deems to be in the public interest” from the application of any provision of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) (PHS, at para. 39).
[66] The Court found that exemptions acted “as a safety valve that prevents the [statute] from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects” (PHS, at para. 113). In other words, when the Minister’s discretion was exercised, these provisions cured the constitutional defects that would have arisen had the general prohibition been left to apply to those who ought not to have been caught by it: the staff and clients of a safe injection facility (paras. 94 and 114).
[67] Here, the Federal Court of Appeal rightly drew on PHS in stating that related provisions in a legislative scheme may “prevent” or “cure” constitutional defects (C.A. reasons, at para. 58(a)). The exemptions discussed in PHS were “curative” in that they made discretionary relief available to those who would otherwise be inappropriately subject to the general prohibition. In other words, the exemption remedied the specific harm that would have flowed from the application of the general rule.
[68] Curative measures are thus remedial: they repair a breach that would be caused by a general rule by providing a targeted exemption after the fact (see PHS, at para. 41). These measures often work together with preventative measures to limit the scope of a provision of general application. Preventative measures narrow a general rule by precluding its application in anticipation of a breach, often through legislative exceptions. These categories are not watertight compartments, nor are they exhaustive. Moreover, if a class of individuals habitually receive individualized exemptions after the fact, a legislature could enact a class‑wide exception that applies in advance.
[69] Charter challenges need not target preventative and curative provisions when the provision of general application to which they relate is a cause of the alleged mischief. Following PHS, courts must consider legislative provisions in their entire statutory context, irrespective of how the parties frame their challenge of a legislative scheme. Indeed, a failure to consider a relevant related provision can “undermine the legitimacy” of constitutional analysis (R. v. Parker (2000), 2000 CanLII 5762 (ON CA), 49 O.R. (3d) 481 (C.A.), at para. 171, per Rosenberg J.A.).
[70] In the legislative scheme at issue in this case, examples of preventative measures include the death penalty exception in s. 159.6 of the IRPR and the various family reunification exceptions in s. 159.5(a) to (d). Curative measures include the availability of temporary resident permits under s. 24, humanitarian and compassionate exemptions under s. 25.1(1), and public policy exceptions under s. 25.2(1).
[71] At the engagement stage, preventative provisions can tailor a provision of general application so carefully that it never threatens s. 7 interests. For instance, s. 159.6 of the IRPR prevents the threat to life that might emerge from returning individuals subject to the death penalty. In so doing, preventative provisions like s. 159.6 rule out certain s. 7 engagements. By contrast, curative provisions will rarely, if ever, preclude the engagement of s. 7. PHS provides direct support for this proposition, as this Court held that the general prohibition on possession engaged s. 7 despite the availability of safety valves. Curative provisions create exceptional departures from a general rule; they are typically available only after a determination that the general rule applies. The possibility of obtaining an exemption is therefore a path through which the risks the general rule poses to life, liberty or security of the person can sometimes be avoided. In such cases, the threat to the s. 7 interests persists, but it does not always materialize.
[72] Some have suggested that because curative mechanisms are available, refugee claimants’ s. 7 interests are not engaged at the exclusion or inadmissibility determination stage. This assertion rests on a statement in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, that it is at the “subsequent pre‑removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged” rather than earlier stages (para. 75). This comment in B010 relied on a passage from Febles, which spoke to the Charter‑compliance of an exclusion provision in the IRPA. Some scholars have criticized this view of curative mechanisms’ role in engagement, saying that dicta from these cases should not deflect analysis from this Court’s approach to s. 7 engagement established in other contexts (see Heckman, at p. 313; C. Grey, “Thinkable: The Charter and Refugee Law after Appulonappa and B010” (2016), 76 S.C.L.R. (2d) 111, at pp. 131‑35 and 139; see also H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2nd ed. 2019), at pp. 77‑81 and 342).
[73] Febles stated that an exclusion provision was “consistent” with s. 7 of the Charter (para. 67). In line with Bedford and PHS, Febles should not be read as conflating the engagement and the principles of fundamental justice stages of the s. 7 analysis. As for B010, I observe that this Court ordered a new hearing in that appeal as a matter of statutory interpretation and found it unnecessary to consider the appellants’ s. 7 challenge (para. 74). The brief comment that it is only at the pre-removal stage that “s. 7 is typically engaged” was neither a formal statement of the law nor necessary to decide the case (para. 75). It should not be taken to have changed the established law on s. 7 engagement. It is helpful to recall that in other contexts, such as extradition, s. 7 “permeates” the entire process and is “engaged, although for different purposes” at each stage of the proceedings (United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34, per Arbour J.). In the context of ineligibility under s. 101(1)(e) of the IRPA, where curative measures are key to the s. 7 analysis, such measures are thus best understood as relevant to the principles of fundamental justice rather than to the threshold question of engagement, in keeping with this Court’s methodology in Bedford (see, e.g., Heckman, at pp. 347‑56).
[74] Turning to the principles of fundamental justice analysis, the role of preventative provisions will vary depending on which principles are at issue. For example, legislative tailoring determines how broadly the general regime will be applied and thus undoubtedly factors into whether a scheme is overbroad.
[75] The parties disagree as to how curative measures bear on this case. In line with this Court’s reasoning in PHS, the respondents appear to see curative measures — like humanitarian and compassionate exemptions — as relevant to determining whether the principles of fundamental justice are respected. Conversely, the appellants claim that Bedford’s highly individualistic focus on “whether anyone’s life, liberty or security of the person has been denied” has overtaken PHS on this point (para. 123 (emphasis in original)). They say that discretionary exemptions now only factor into the s. 1 analysis.
[76] I disagree with the appellants. Curative mechanisms are properly considered when assessing whether a deprivation comports with the principles of fundamental justice. Bedford did not hold otherwise. Indeed, curative mechanisms were not at issue in Bedford, so it was unnecessary for this Court to comment on how its approach interacted with its reasoning in PHS. In my view, Bedford and PHS are compatible. Curative provisions have taken on increased significance in the wake of Bedford’s recognition that a regime that is rational and non‑arbitrary in almost all circumstances can nonetheless violate s. 7 if it is arbitrary, overbroad or grossly disproportionate for one individual (para. 123). If the legislature has crafted a scheme that cures potential breaches by providing exemptions that can target the specific deprivations, this can render the legislative scheme Charter‑compliant (see D. Moore, “Engagement with Human Rights by Administrative Decision-Makers: A Transformative Opportunity to Build a More Grassroots Human Rights Culture” (2017), 49 Ottawa L. Rev. 131, at pp. 150‑51; see also PHS, at para. 114). In this sense, the focus of the s. 7 analysis is, at most, only “highly individualistic” when the legislature has not provided mechanisms that individualize the law’s effects (Stewart (2019), at p. 150; see also C. Fehr, “Rethinking the Instrumental Rationality Principles of Fundamental Justice” (2020), 58 Alta. L. Rev. 133). However, as in PHS, the exemption mechanism must be responsive to the specific deprivation that is the subject of the Charter challenge.
[77] I note that the Court of Appeal viewed the availability of judicial review in the federal courts as a relevant safety valve. It is true that within the framework established by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, and this Court’s broader administrative law jurisprudence, judicial review helps ensure that public authorities respect “legal limits, derived from the enabling statute itself, the common or civil law or the Constitution” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 28). However, judicial review offers different relief than a statutory mechanism that prevents or cures defects that would arise from the isolated operation of a general rule. This is because legislatures can never entirely “shield administrative decision making from curial scrutiny” (Vavilov, at para. 24). The general availability of judicial review therefore cannot save otherwise unconstitutional legislation. For this reason, I consider it unhelpful to view judicial review as a form of “safety valve” or statutory safeguard.
[78] In sum, preventative and curative provisions are both relevant in different ways to the appellants’ Charter claim. To assess a s. 7 breach, the presence of such mechanisms must be considered. However, the appellants did not need to target these provisions to constitute their challenge.
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D. Section 1
[165] Given that the legislative scheme does not violate s. 7, it is not necessary to undertake a s. 1 analysis. However, for the sake of completeness, I provide some brief comments on s. 1 justification for circumstances in which it would be required. In doing so, I highlight the distinct relevance of safety valves in a s. 1 analysis where the burden of justification is on the state.
[166] The appellants argue that while legislative safety valves did not ensure that the legislation accords with the principles of fundamental justice under s. 7, such avenues for discretionary relief may remain relevant in addressing s. 1. However, they submit that the respondents did not file any evidence in support of a s. 1 justification, and they rely on the Federal Court judge’s statement that safeguards are “illusory”.
[167] The respondents argue that had a s. 7 breach been made out, it would be justified under s. 1, in part because of related provisions in the legislative scheme. They say that the whole of the law serves to advance the pressing and substantial objective of sharing responsibility for refugee status determinations with the United States. Further, they submit that the scheme is minimally impairing of claimants’ s. 7 rights and point to the continuous monitoring of the regime under s. 102(3) of the IRPA and to the IRPA’s safety valves.
[168] Both parties rightly acknowledge that safety valves are relevant at the s. 1 stage, as this Court accepted in Carter (paras. 114‑21). However, the role these mechanisms play at the s. 1 stage differs from their role at the s. 7 stage as does, of course, the burden that the state bears. This is because s. 7 and s. 1 “ask different questions” insofar as “justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights” (Bedford, at para. 125). Given this distinction, “a different set of considerations comes into play under section 1: not just the effect of the law on (at least) one person’s section 7 interests, but the effect of the section 7 violation in achieving the law’s policy objectives” (H. Stewart, “Bedford and the Structure of Section 7” (2015), 60 McGill L.J. 575, at p. 589). When safety valves are at issue, the considerations in play under s. 7 and s. 1 remain distinct.
[169] While discretionary exemption mechanisms are relevant to determining whether impugned legislation breaches individual rights protected by s. 7, they may not be adequate to ensure that no deprivations contrary to the principles of fundamental justice occur. In other words, they may not succeed in curing all deprivations of individuals’ s. 7 interests. For instance, the scope of a safety valve may simply not be wide enough to exempt all individuals inappropriately caught by the general rule.
[170] As is the case throughout the s. 7 analysis, claimants bear the burden to show that legislative safety valves do not remedy individual deprivations. To do so, they may, for example, advance arguments and lead evidence demonstrating that a legislative regime itself causes a statute’s curative mechanisms to be practically unavailable. However, at the s. 1 stage, the government bears the burden to show that the safety valves — as a whole — are sufficient to justify any established s. 7 breaches under the test from R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. This Court has left open the “possibility that the government could establish that a s. 7 violation is justified” (Bedford, at para. 129).
[171] At the s. 1 stage, the government may argue — as Canada did here — that a scheme’s safety valves, if they proved to be imperfect under s. 7, nonetheless render the legislation minimally impairing. Further, the government might seek to rely on safety valves in the final balancing stage of Oakes. Nonetheless, given that a s. 7 violation was not established in this case, it is unnecessary to comment on what the outcome of any part of the s. 1 analysis might have been here.
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