|
Administrative - Charter (8). Guerard v. The Corporation of the Municipality of Mississippi Mills
In Guerard v. The Corporation of the Municipality of Mississippi Mills (Div Ct, 2026) the Divisional Court dismissed a township councillor's JR, this brought against "both the [SS: Integrity] Commissioner’s findings and the penalty imposed by the Municipality", these under the municipality’s Code of Conduct regarding non-compliance with the municipality's COVID vaccination policy.
Here the court notes the reduced privacy [Charter s.8] interest of "those who participate in regulated spheres of activity":[54] The Commissioner referred to the diminished expectations of privacy during regulatory investigations, relying on British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3. As the respondents argue, Branch makes the point that those who participate in regulated spheres of activity have diminished expectations of privacy in the context of that activity: Branch, at para. 57. In the sphere of activity which is at issue in this case, being a member of a municipal council, those who run for municipal office and are elected assume the obligation to be bound by the relevant municipality’s code of conduct including its restrictions, if any, on speech: Buck v. Morris, 2015 ONSC 5632, at paras. 191 – 193. . Guerard v. The Corporation of the Municipality of Mississippi Mills
In Guerard v. The Corporation of the Municipality of Mississippi Mills (Div Ct, 2026) the Divisional Court dismissed a township councillor's JR, this brought against "both the [SS: Integrity] Commissioner’s findings and the penalty imposed by the Municipality", these under the municipality’s Code of Conduct regarding non-compliance with the municipality's COVID vaccination policy.
Here the court, despite it's (IMHO strained) protestations to the contrary, comes uncomfortably close to accepting that an administrative decision-maker's duty when considering the Charter is that of accepting whether any Charter right is invoked, regardless of it's nature [which seems to me to plainly disregard the differential balancing (and thus necessarily 'weighing') that different Charter rights and infringements are entitled to]:[34] I agree with the respondents. While he did not explicitly refer to freedom of expression (since it was not raised before him), the Commissioner did correctly identify the relevant Charter values that were engaged in this case, and he balanced those values against the relevant statutory objectives: the importance of compliance with the Code of Conduct by elected officials and the need for a workable vaccination policy. That is all that was required of the Commissioner: that he “appreciate that a Charter right arose from the facts …, the scope of its protection, and [that he applied] the appropriate framework of analysis”: York Region, at para. para. 63. He therefore made no error in law and proceeded correctly. ....
[35] At this stage, however, I note that the Commissioner was not required to refer to the applicant’s right to free expression by name. It was enough that he understood both the relevant values which underpin that right and “the link between the value[s] and the matter under consideration”: Commission scolaire, at para. 66. Sometimes, the relevant values will underpin more than one Charter right. In Trinity Western University, at para. 76, Abella J. referred to this circumstance as one of “overlapping Charter protections.” Where two Charter protections overlap, for example, consideration of one may well mean consideration of both. In Trinity Western University itself, although the dispute between the parties had been “almost exclusively framed” as a dispute about religious freedom, that dispute also engaged other rights, including expressive rights. As the “factual matrix underpinning a Charter claim in respect of any of these protections [was] largely indistinguishable”, the court was able to conclude that all relevant rights and freedoms had been “proportionately balanced” despite the narrower formulation of the issues by the parties: paras. 76 – 78.
[36] In my view, this case is similar in nature. Although the dispute was framed almost entirely as a dispute about the values relating to rights of autonomy, privacy and silence, those values were largely indistinguishable from the values underpinning the right to free expression as it was relevant in the context of this case. ....
....
[39] The Integrity Commissioner’s reasons, then, insofar as they are to be judged for their attention to the applicant’s right to freedom of expression, must be read generously since he was never given the benefit of submissions on the point by the applicant. In any case, as I have said, I am satisfied that the Commissioner did consider the relevant Charter values, including those underlying freedom of expression, in the context of this case.
[40] This is so given that the values engaged by ss. 7 and 8 of the Charter in this case are the same – or are sufficiently similar to – those protected by the right to freedom of expression. In this context, ss. 7 and 8 protect individual autonomy, personal privacy and the right to silence. The applicant’s right to say nothing – as she casts her expressive right in this court, relying on Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1080 – protects the same things: individual autonomy, personal privacy and the right to silence.
[41] The applicant refers to the judgment of the Supreme Court of Canada in Irwin Toy Ltd. v. Quebec, 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, where, at p. 976, Dickson C.J. wrote that the three broad values underlying free expression include “the pursuit of truth, participation in the community, [and] individual self-fulfillment and human flourishing.” The applicant submits that the second and third of these values are engaged in this case. Taking the third value first, especially given that the expression in question here is silence in connection with respect to a matter relating to personal health, self-fulfilment and human flourishing are part and parcel of individual autonomy and rights to privacy and silence, the very values the applicant raised with the Commissioner.[4]
[42] With respect to participation in the community, which Dickson C.J. further described (at p. 976) as “participation in social and political decision-making,” I make two broad points. First, it was obvious to the Commissioner that he was considering an issue which had arisen in the context of political decision-making. That fact is plain on the record and could not possibly have been lost on an official whose job it is to consider the conduct of political decision-makers. That the applicant’s expressive conduct occurred in a political context would have been even more evident to her fellow members of Council (themselves also political decision-makers), who were present for her objection to the policy in the first place, who were aware of her questions of the CAO and of her attempt to require him to answer those questions, and of her support for an amendment of the motion to amend the policy on the occasion of its six month review.
[43] Second, it seems to me fair to say that the applicant’s amorphous invocation of the Charter in opposition to the creation of the policy and her later refusal to apologise were forms of political expression which, of course, attracts a high degree of protection from the courts: B.C. Freedom of Information and Privacy Association v. British Columbia, 2017 SCC 6, at para. 16. And although the applicant’s failure to answer the Commissioner’s question about her vaccination status was never described as political speech, I think it is further fair to say that such failure could be characterized as political in nature in the circumstances of this case, and would have been understood as such by the Commissioner and by Council.
[44] However, acknowledging the politically expressive nature of the applicant’s refusal to answer the Commissioner’s question does not fundamentally change the nature of the values at stake. The applicant’s political objection to the policy in the first place – so far as her position can accurately be discerned – was to a policy that required both vaccination and proof of vaccination. I infer that her objection was that the policy interfered with personal autonomy because it forced those who work for the Municipality, for example, to submit to a medical procedure to which they might object, and that it interfered with their rights to privacy and silence because it would require them to disclose medical information about themselves. These latter concerns are the very issues raised in Mr. Hunter’s letters to the Commissioner and are the very issues to which the Commissioner responded in his report to Council.
[45] The Commissioner referred specifically to the applicant’s privacy interest in her own medical information, and to the sections of the Charter which protect the right to privacy and to silence. In addition, he referred to the judgment in Banas v. Ontario, 2022 ONSC 999, where Hurley J. dealt with arguments made under ss. 7 and 8 of the Charter in the context of an objection to masking and proof of vaccination requirements during the COVID-19 emergency. Like Hurley J., the Commissioner found that the applicant had failed to supply evidence that the Municipality’s vaccination policy had caused any harm to her s. 7 and 8 rights. Importantly, although the Commissioner did not refer to it (because the applicant did not raise the issue), the judgment in Banas also refers to the allegation made in that case that COVID-19 regulations interfered with freedom of expression. Hurley J. wrote as follows (at paras. 27 – 29):Ms. Banas says she has a conscientious objection to the mask and vaccination requirements. But that does not mean the mask and vaccination requirements infringe her freedom to hold and maintain this objection.
Similarly, she maintains the same freedom to hold whatever thoughts, beliefs and opinions she has about COVID-19; whether the legal requirements are good or bad; and should or should not be imposed by the government. She is also free to express these beliefs. None of the impugned provisions limit her ability to do so.
She can peacefully assemble and associate with people as much as she wants in and outside her restaurant. Potential customers may not care to dine at a restaurant because of the mask and vaccination requirements: that is their right in a free and democratic society. [46] If the applicant had raised the issue of freedom of expression, the Commissioner might have referred to this passage. In any event, the Commissioner addressed these very concerns, albeit in somewhat different terms, by turning to the protections offered by s. 8 of the Charter and setting up the applicant’s refusal to answer and her reasonable expectations of privacy against the purpose of the Code of Conduct and the vaccination policy.
[47] Given that I infer that the political objection to being required to reveal one’s vaccination status is based on the applicant’s view that such an inquiry violates her privacy rights, it cannot be said that the Commissioner did not consider the applicant’s right to engage in political expression by saying nothing. Here, as the respondents write in their factum, the applicant’s expressive right and her right to privacy “are two sides of the same coin.” Since the question as presently framed was not put to the Commissioner, it is not surprising that his report does not grapple with the applicant’s s. 2(b) right expressly, but on a full and fair reading of his report it is evident that it does deal with the core of the applicant’s complaint and the values upon which it rests, even as they have been expressed well after the fact in this court. . Bujacz v. Ontario College of Teachers [Oakes v Dore-Loyola]
In Bujacz v. Ontario College of Teachers (Ont Div Ct, 2026) the Ontario Divisional Court dismissed appeals, here brought against "the decisions of the Ontario College of Teachers .... (the Discipline Decision), .... (the Penalty Decision) and .... (the Charter Decision)" - these respecting "remarks of a sexual nature to a student on Facebook" that invoked "mandatory revocation of the teacher’s certificate of qualification and registration".
Here the court considers 'alternative' Charter s.1 analyses - ie. the conventional court Oakes test, and the administrative Dore-Loyola test:[108] As the Supreme Court instructs in Doré at para. 36, the approach courts take when the source of a limitation on Charter rights is enshrined in law is different than when the source of the limitation is an individualized administrative decision. Hence, the uncontested use of the Oakes test to challenge the constitutionality of the mandatory revocation provision for making remarks of a sexual nature to a student.
[109] Also, unlike Gould, here the Discipline Panel did consider the relevant Charter values as part of the Oakes analysis regarding the mandatory revocation arising from remarks in the definition of “sexual abuse”. The appellant accepts that a Doré analysis “is a proportionality exercise, similar to the one performed under the Oakes test.”
[110] As set out in Doré, at para. 56, the decision-maker should “ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives.”
[111] The Oakes analysis in the Charter Decision includes relevant findings for a Doré analysis regarding the finding of sexual abuse. The Discipline Panel was alive to the values underlying free expression, as they relate to the specific statements the appellant made, when the Panel discussed the proportionality of the mandatory revocation provisions. This discussion “works the same justificatory muscles” as the Doré analysis and achieves the goal the Supreme Court articulated in in Doré, at paras. 5-6: “In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”
[112] Further, both Oakes and Doré contemplate giving a “margin of appreciation,” or deference, to administrative and legislative bodies in balancing Charter values against broader objectives”: Doré, at paras. 35, 57. In the professional regulatory context, this includes affording deference to regulators’ determinations of the harm to the public caused by the actions of regulated professionals: Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, 167 O.R. (3d) 11 (Div. Ct.), at para. 45, leave to appeal to Ont. C.A. refused 2024 CarswellOnt 13873, leave to appeal to S.C.C. refused [2024] S.C.C.A. No. 78; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 38.
[113] In Doré, the court below had also done an Oakes analysis, and, after deciding on the Doré approach, the Supreme Court proceeded to apply it. We see no reason not to consider the impact of a Doré analysis here given the overlapping nature of the issues and the extensive reasons of the Discipline Panel on relevant Charter issues.
[114] As discussed above, the appellant submits that the Discipline Panel erred in not conducting a Doré analysis when it decided whether or not he had engaged in “sexual abuse” as defined in s. 1(1) of the Act. We find that analysis would not have yielded a different result.
[115] Under Doré, the first step is to consider the statutory objectives at issue. Here, the statutory objective of the definition of “sexual abuse” and related sections under which a finding of sexual abuse results in a finding of professional misconduct and mandatory revocation, are the same as discussed and elaborated on above. They need not be fully repeated here. The parties agree that there is a pressing and substantial objective here, specifically to protect students from all forms of sexual abuse, which applies under this analysis as well.
[116] Under Doré, the nature of the Charter right must be considered. Here, it is the same expression and the same impact as found under the Oakes test above – freedom of expression that is at the lowest end of the spectrum of interests protected by s. 2(b) of the Charter. The Discipline Panel found that the appellant’s Facebook messages to Student 1 were repugnant, yet they were protected by s. 2(b). We see no error in reaching that conclusion.
[117] In the Doré analysis, we then consider how to best protect the Charter rights in view of the statutory objectives. The appellant submits that having regard to his Charter rights, the remarks that fall within the definition of “sexual abuse” should be narrowly construed to exclude his remarks. He raises the definition of “sexual misconduct” in the Act in comparison, submitting that less problematic remarks would fall under that definition. A finding of sexual misconduct does not result in mandatory revocation.
[118] These submissions overlook an important distinction between sexual abuse and sexual misconduct under the Act. Sexual abuse typically involves targeted behaviour or remarks of a sexual nature toward a particular student. That is what happened here. The appellant used a social media route to communicate with Student 1 in particular. He sent her messages late at night and asked her personal questions. Student 1 understood the messages as attempts to probe her for her age, whether she had a boyfriend and as sexual innuendo and insinuations of wanting to pursue some type of sexual encounter with her. Student 1’s mother felt that the appellant was grooming and preying on Student 1. The appellant’s inappropriate communications with Student 1 have had a lasting impact on her well-being.
[119] The Panel found that the Facebook messages that were sent to Student 1 were personal, open to a sexually suggestive interpretation, and were inappropriate. The Panel applied the agreed objective test from Chase, concluding that they were of a sexual nature. Although the appellant submitted then and now that he did not have a sexual purpose, his credibility has been significantly undermined as set out in the Merits Decision.
[120] When considering how to best protect the Charter right in view of the statutory objectives, the analysis of the statutory objectives in the Charter Decision applies and need not be fully repeated here. It begins with the objective to protect students from all forms of sexual abuse. The prior legislation excluded remarks to a student of a sexual nature from mandatory revocation. The purpose of the legislative reform was to significantly increase that protection, given the harms of sexual abuse on students. Educators are in a position of trust and authority and work with a vulnerable sector of society. The protected speech in this case was shown to have caused harm to Student 1. A Doré analysis does not assist the appellant in this case given the nature of his speech and the importance of the statutory objectives.
[121] To the extent the Discipline Panel may have erred in not conducting a Doré analysis, the substance of the Doré analysis was done as part of the Oakes analysis in the Charter Decision, and confirmed by this Court. There is no substantial wrong or miscarriage of justice in this case. There need not be a new hearing: s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43; Okafor v. Ontario College of Teachers, 2025 ONSC 6089 (Div. Ct.), at para. 86. . Christian Heritage Party of Canada v. Hamilton (City)
In Christian Heritage Party of Canada v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against an earlier dismissal of a JR application - that against "whether the respondent, City of Hamilton (the “City”), acted unfairly or unreasonably in rejecting a proposed advertisement for City-owned transit shelters from the appellants, Christian Heritage Party of Canada and Christian Heritage Party Hamilton-Mountain Electoral District Association (collectively, “CHP”)".
Here the court applies the administrative Charter Dore-Loyola balancing between the claimant's Charter rights and the state's statutory objectives:[26] With respect to the standard of review for the City’s adherence to the Doré/Loyola framework, the City’s identification of the Charter rights and the scope of their protection is subject to a standard of correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at para. 63. The City’s balancing of those interests with the City’s statutory objectives, however, is subject to a standard of reasonableness: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 60; see also Toth v. Canada (Mental Health and Addictions), 2025 FCA 119, 505 D.L.R. (4th) 356, at paras. 17-19.
....
[52] The Doré/Loyola framework for balancing Charter values with statutory objectives does not appear to be in dispute in this case. Rather, the parties diverge with respect to whether the City properly abided by that framework in the circumstances of this case.
[53] The framework originated in the Supreme Court decisions in Doré, Loyola, and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, and affirmed most recently in Commission scolaire. Under this framework, the Court prescribed a two-step process in which the decision-maker should first consider the statutory objectives underlying a discretionary decision and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”: Doré, at paras. 55-56.
[54] This court reviewed the Doré/Loyola framework in Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, 166 O.R. (3d) 481, leave to appeal refused, [2023] S.C.C.A. No. 366, and emphasized the requirement for a “robust proportionality analysis”, at paras. 145-46:In place of the Oakes test, Abella J. prescribed a two-step process in which “the decision-maker should first consider the statutory objectives”, and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”. This expectation was later enhanced in Loyola and Trinity Western: tribunals must carry out “a robust proportionality analysis consistent with administrative law principles”, one that works “the same justificatory muscles” as the Oakes test, not a “watered-down version”. 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.
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.” 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”. [Footnotes omitted.] [55] The Decision Letter makes clear how the City understood the balancing exercise. For example, in setting out the concerns that the City sought to address, Mr. Grant expressly acknowledged the importance of CHP’s Charter rights:We acknowledge and deeply respect your organization's right to freedom of expression, a right that has been recognized as a fundamental ingredient to the proper functioning of democracy for hundreds of years. It has been protected by constitutions, laws and courts across numerous democratic jurisdictions and it is a right that we honour and carefully consider in our decisions.
We agree with the perspective expressed in the Ontario Court of Appeal, which described the profundity of this right and its importance in a democratic society. Freedom of expression has been highlighted as the cornerstone of democracy, ensuring that everyone can manifest their thoughts, opinions, beliefs, and expressions, however unpopular, distasteful, or contrary to the mainstream. This protection is regarded as 'fundamental' because, in a pluralistic, democratic society, we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.
Accordingly, the Supreme Court has recognized that citizens, including bus riders, are expected to put up with some controversy in a democratic society and some resiliency in the audience is required. [Footnote omitted.] [56] In the next section of the letter, under the heading “Balancing the Freedom of Expression against the City’s Statutory Objectives,” Mr. Grant noted that the right to freedom of expression is not absolute, and that, in the context of accepting advertisements, the City was entitled, and obligated, to balance CHP’s Charter right against the statutory objectives that the municipality was pursuing. Mr. Grant described the City’s objective as providing a safe and welcoming transit system.
[57] At the end of the Decision Letter, Mr. Grant returned to this balancing exercise. After reiterating that the City “steadfastly” supports freedom of expression and the City’s concern for the “hostile environment” to which the Advertisement could give rise, Mr. Grant concluded, “It is therefore imperative that we make decisions that prioritize the safety and well-being of our transit users above all. Thus, to provide an inclusive, respectful, and safe environment for all citizens, we find it necessary to reject this advertisement.”
[58] The appellants argue that the City was unduly fixated on the transgender and LGBTQ third party communities. They contend that the statutory objective of a safe and welcoming transit system is not solely concerned with the interests of these communities, but the larger population of the City as a whole. The appellants submit that to elevate the safety and well-being of these communities as the only interests to be weighed against CHP’s Charter rights amounts to an error.
[59] I would reject this submission. The City did not arbitrarily choose to focus on transgender or LGBTQ communities at the expense of other residents of the City. Rather, the City relied on empirical and qualitative evidence about and from these communities, who they identified as being the groups most vulnerable to harms arising from the Advertisement. The City concluded based on its research and consultations that the Advertisement would likely jeopardize the City’s ability to provide a safe and welcoming transit system. It provided CHP with the sources for this conclusion in the Decision Letter. The Supreme Court has confirmed the validity of this objective as a justification to limit transit advertising: Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 76.
[60] This analytic approach is analogous to the Supreme Court’s approach to the Doré/Loyola analysis in Trinity Western: it is necessary to consider whether the unlimited exercise of the Charter rights of one group could cause concrete harms to another, contrary to the statutory objectives in issue: at para. 103. In Trinity Western, the majority held, at para. 101:In saying this, we do not dispute that “[d]isagreement and discomfort with the views of others is unavoidable in a free and democratic society”, and that a secular state cannot interfere with religious freedom unless it conflicts with or harms overriding public interests. But more is at stake here than simply “disagreement and discomfort” with views that some will find offensive. This Court has held that religious freedom can be limited where an individual’s religious beliefs or practices have the effect of “injur[ing] his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own”. Likewise, in Multani, the Court held that state interference with religious freedom can be justified “when a person’s freedom to act in accordance with his or her beliefs may cause harm to or interfere with the rights of others”. Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion. [Emphasis added; citations omitted.] [61] The parties, and even more so the intervening organizations, Association for Reformed Political Action Canada (“ARPA”) and Egale Canada, advance divergent views on whether the proposed Advertisement constitutes discrimination against transgender individuals or other members of the LGBTQ community.
[62] Egale advances the view that the proposed Advertisement is discriminatory on its face and by defining “woman” as an “adult female”, the Advertisement asserts that only those who are assigned female at birth are women. Egale submits that this denies the legitimacy of transgender identities and the very existence of women who were not assigned female at birth.
[63] The appellants and ARPA contend that this is not the case. They assert that the alleged harm to these communities is a form of subjective offence, which should not be seen as capable of infringing the political speech rights of the appellants in a Doré/Loyola analysis. The appellants rely on this court’s decision in Bracken v. Fort Erie (Town), 2017 ONCA 668, 137 O.R. (3d) 161, at para. 49, where the court held that “a person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b).” They also rely on the majority’s reasons in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 S.C.R. 176, for a similar proposition. These cases make clear that, in order to justify rejecting the Ad, something more than avoiding the subjective offence of certain residents of the City was needed. Similarly, the mere inconsistency of the proposed Advertisement with City policies such as the Gender Identity Protocol would not, on its own, justify rejecting the Advertisement. Rather, the City rejected the Advertisement based on the risk of harm to which it gave rise and the City’s statutory requirement to provide a safe and welcoming transit system.
[64] In my view, the issue of whether the proposed Advertisement would violate the Ontario Human Rights Code, or otherwise would be found unlawful, is not determinative in the Doré/Loyola context. The City did not rely on the illegality of the Advertisement as a basis for rejecting it but rather the link between the Advertisement and evidence of specific harm to transgender people. While ARPA argues that this evidence was insufficient to support the conclusions reached by the City, the City’s analysis is entitled to deference. I would not accept that the City acted unreasonably in engaging in this research or in identifying the risk of specific harms flowing from the Advertisement, particularly where, in the context of transit shelters, the message in the Ad would be virtually impossible for affected individuals to ignore.
[65] The appellants also take issue with the City’s alleged failure to grapple with other Charter values at issue in this case, including equality rights for religious groups and rights to religious freedom. The City argues it was not obliged to refer to rights beyond freedom of expression and underscore that in the Notice of Constitutional Question accompanying its application for judicial review, only s. 2(b) of the Charter is mentioned.
[66] The appellants have not drawn any clear connection between the Advertisement and the freedom to practice their religion. They also have not shown how rejecting the Advertisement would create inequality between one or more religious groups and others.
[67] In their factum, the appellants assert that, “CHP’s Christian values are central to its political messaging and inform CHP’s engagement with the truth-seeking process protected by section 2(b).” CHP has not shown that the City had evidence in the record as to the meaning of “Christian values” or that CHP’s position was reflective of the City’s Christian-identifying residents’ views. The City acknowledged that the Advertisement “supports a traditional and biologically determined definition of gender, in line with conservative values.” In my view, specific reference to CHP’s understanding of Christianity and its values was not necessary for the City’s Doré/Loyola analysis.
[68] In Lauzon, at para. 151, this court emphasized that the decision-maker must undertake three inquiries as part of the Doré/Loyola analysis: (1) the decision-maker should assess the negative effects of the decision on the exercise of the right asserted, as well as any collateral effects, for example, creating a chilling effect on the rights of others; (2) the decision-maker should assess the positive effects or benefits of that disposition in terms of the public good; and (3) the decision-maker should undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the negative effects or costs imposed by the disposition are out of proportion to the public good to be achieved.
[69] While the appellants object to how the City engaged in its proportionality reasoning – for example, the appellants argue the public good at issue was protecting free speech, not ensuring the safety and inclusion of the transit system – it is clear that the City undertook the robust proportionality exercise envisioned in Lauzon.
[70] With respect to the substance of the City’s proportionality analysis, as set out above, deference is owed.
[71] The question, ultimately, is whether the City acted reasonably. As Abella J. observed in Doré, at para. 54:Even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case. But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis. [Emphasis in original.] [72] For the reasons set out above, I conclude that the City’s decision to reject the Advertisement was reasonable and resulted from a proper application of the Doré/Loyola analysis.
|
