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Charter - Charter Torts (2). Inlakhana v. Canada (Attorney General)
In Inlakhana v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an unusual Charter s.11(i) ["if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment"] appeal. Here, a prisoner was able to apply Charter 11(1) to her case when parole eligibility stiffened between the commission of her offence and the sentencing. She sought to sue [for "false and unlawful imprisonment, negligence and Charter-related infringements"] for any administrative 'excess incarceration' [SS: my term] - that is, periods that she would have been paroled if the more favourable law had been applied seamlessly.
This appeal challenged the trial court's partial summary judgment award to the government respondent (the appellant first-initiated summary judgment motion) "releasing the respondent from liability arising from a failure to act expeditiously after the declaration was made":[1] Souphin Inlakhana was serving a penitentiary sentence of 6 years, 4 months and 27 days. At the time of the commission of the offences for which she was sentenced, the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) provided for accelerated parole for non-violent offenders serving their first penitentiary sentence. There is no dispute that under this legislation Ms. Inlakhana would have been considered for early parole after one sixth of her sentence, but for the fact that the relevant provisions of the CCRA were repealed on March 28, 2011, about six months before she was convicted and sentenced.
[2] Several inmates at Grand Valley Institution for Women, including Ms. Inlakhana, succeeded in establishing that their s. 11(i) Charter rights had been breached by denying them accelerated parole review. Since the offences for which they were sentenced were committed before the accelerated parole process was abolished, they were entitled to the benefit of lesser punishment: Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394, aff’d 2015 ONCA 379, leave to appeal refused, [2015] S.C.C.A. No. 325. Therefore, the effect of the decision was that Ms. Inlakhana was eligible for accelerated parole review.
[3] Immediately upon being notified of that decision, the Correctional Service of Canada (“CSC”) started to implement the process for determining Ms. Inlakhana’s parole eligibility. She ultimately received parole 43 days after the constitutional declaration was made.
[4] The appellants, Ms. Inlakhana and the Family Law Act claimants, commenced an action seeking damages for, among other things, false and unlawful imprisonment, negligence and Charter-related infringements. There were two aspects to the claim. The first had to do with the fact that Ms. Inlakhana spent much longer in custody as a result of the unconstitutional retroactive denial of the accelerated parole review system under the CCRA. The second had to do with what the appellants describe as a 43-day delay in processing Ms. Inlakhana’s release from custody on parole after the constitutional declaration was made.
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[12] Second, the appellants argue that the motion judge erred in dismissing the Charter claim, specifically that Ms. Inlakhana had been denied her s. 7 right to liberty "contrary to the principles of fundamental justice". The appellants contend that the motion judge erred when she suggested that the CSC and Parole Board were mandated to follow a process. They suggest that the following passage from the reasons reflects error:The [Parole Board] is statutorily required to review all information with respect to an offender in order to determine whether there are grounds to believe that she is likely to commit an offence with violence before the expiration of the sentence: CCRA s. 101(a). I agree that [Ms. Inlakhana’s] release was virtually a "sure thing" but nevertheless, a statutorily mandated process was in place. As a result, it cannot be said that her detention for an additional 43 days was contrary to the principles of fundamental justice. [13] The appellants suggest that the trial judge erred when she said that there was a statutorily mandated process in place to review information before determining whether Ms. Inlakhana should get parole. We disagree.
[14] Conditional release is governed under the CCRA. In particular, as mentioned earlier, s. 101(a) explicitly requires the Parole Board to take into consideration all manner of enumerated factors and information in “achieving the purpose of conditional release”. While Ms. Inlakhana’s release may have been, as the motion judge put it, “virtually a ‘sure thing’”, the decision about early release was that of the Parole Board and the Parole Board alone. While the information provided to the Board may have informed what it was likely to do, parole could not be granted until all the necessary information was provided to the Board and the Board was able to exercise its discretion in accordance with that information.
[15] We see no error in the motion judge's reasons. . Leroux v. Ontario
In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.
These quotes deal with the Charter s.7 'tort' claims, which were reinstated by the Court of Appeal - at least on a class action certification basis:(3) Section 7 Charter Claim
i. Position of the Parties
[73] The appellant argues that the Divisional Court erred in finding it was plain and obvious that her s. 7 Charter claim had no reasonable chance of success. The appellant agrees that to establish a s. 7 violation there must be: state conduct, a deprivation of a s. 7 right, and the deprivation must not be in accordance with the principles of fundamental justice. But the appellant submits that the Divisional Court incorrectly interpreted the claim as asserting that the s. 7 breach consisted of Ontario not fulfilling a positive obligation to provide the class members economic and human needs. The appellant argues that the claim does not simply assert a deprivation of the class members’ s. 7 rights flowing from Ontario’s failure to provide Developmental Services or from the very existence of a waitlist. The claim also alleges a deprivation of the class members’ right to security of the person based on the manner in which Ontario has managed DSO waitlists for Developmental Services for persons it has assessed and approved to receive services. This state conduct allegedly interferes with the right to security of the person by undermining the physical and psychological integrity of class members.
[74] Ontario contends that the Divisional Court correctly struck the s. 7 claim. In its view, the Divisional Court was bound by previous s. 7 jurisprudence where claims were rejected on the basis that they sought to impose a positive obligation on the state to provide financial benefits − there is no obligation on the government to do so even in the case of benefits that accord with or enhance Charter values. The failure to provide benefits, or the existence of a waitlist for those benefits, cannot successfully ground a s. 7 claim. Ontario also argues that the appellant does not particularize how the deprivation fails to accord with a principle of fundamental justice, which is fatal to the viability of the s. 7 claim.
ii. The Law
[75] To demonstrate a violation of s. 7 of the Charter, a claimant must first demonstrate that the impugned state action interferes with or deprives them of their life, liberty, or security of the person. Once a s. 7 right has been engaged, they must show that the deprivation is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55. The pleadings must allege both constituent elements to disclose a viable s. 7 claim: Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 97.
[76] In Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 81, the majority highlighted that s. 7 is focussed on a right “not to be deprived” and that nothing in the jurisprudence up to that time imposed a positive obligation on the state to ensure that each person enjoys life, liberty, or security of the person. However, the majority expressly left open the possibility that a positive obligation under s. 7 to sustain life, liberty or security of the person may be made out in special circumstances: at para. 83.
[77] In light of Gosselin, this court has consistently held that, to make out a deprivation of a s. 7 right, claimants cannot point to the government’s failure to provide a financial benefit, even if such a benefit may be necessary to sustain life, liberty, or security of the person: see Wynberg, at paras. 218-220; Flora v. Ontario (Health Insurance Plan, General Manager), 2008 ONCA 538, 91 O.R. (3d) 412, at para. 108. This court has upheld the striking of a s. 7 claim at the pleadings stage when the claim alleged that the deprivation stemmed from the state’s failure to provide access to publicly-funded autism therapy services for children since “[g]overnment action in not providing specific programs … cannot be said to deprive [the claimants] of constitutionally protected rights”: see Sagharian v. Ontario (Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, at paras. 52-53, leave to appeal refused, [2008] S.C.C.A. No. 350 (emphasis in original).
[78] However, this court has also held that claimants 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: see Wareham, at paras. 16-17. As Doherty J.A. wrote, at para. 17, “[t]here is a potential argument to be made that [such] delay … could engage the right to security of the person where that delay has caused serious physical or psychological harm”.
iii. Discussion
[79] I agree with the appellant that the Divisional Court erred in finding the s. 7 claim was doomed to fail because it is completely foreclosed by existing jurisprudence.
[80] The Divisional Court interpreted the claim as imposing a positive constitutional obligation on Ontario to provide Developmental Services to the class members.
[81] But when one reads the pleading generously, the appellant’s s. 7 claim includes an allegation of deprivation of the security of the person that stems from the manner in which Ontario administers DSO waitlists for Developmental Services for persons it has already assessed and approved. In other words, it does not simply allege that the failure to receive Developmental Services or the existence of the waitlist deprives class members of a s. 7 right. It alleges that the conduct of Ontario in assessing, approving, and then placing class members into an incoherent and irrational waitlist process visits harm to their security of the person. Read in this light, the complaint is not simply about state inaction or delay – i.e., the failure to alleviate the class members’ vulnerabilities that already exist due to their developmental disabilities. The complaint is about harm to their security of the person, including their psychological integrity, that is alleged to occur from state action.
[82] As such, the claim can be distinguished from the claims in Wynberg, Flora, and Sagharian. In those cases, the claimants identified their s. 7 deprivation as originating from legislative limitations on the scope of a benefit or the mere existence of a waitlist, and thus their claims could be characterized as seeking to impose a positive obligation on the state.
[83] Here, the appellant points to state action (the ad hoc, unreasonable administration of a waitlist of individuals with approval for essential services) that she alleges causes a form of psychological harm sufficiently profound to deprive class members of the right to security of the person. The claim lists “mental anguish” and the “development of new mental, psychological or psychiatric disorders” as some of the harms stemming from the impugned state conduct. The appellant argues that this psychological harm surpasses the “ordinary stress and anxiety” that the Supreme Court has held to be insufficient to constitute a deprivation of the security of the person: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 60.
[84] As the motion judge noted, it is true that the pleading also asserts that state inaction and delay in providing Developmental Services itself constitutes a deprivation of the security of the person because the benefits are essential to the class members. To the extent the pleading does so, it sails close to asserting a positive constitutional obligation in favour of these class members. But given that the claim read generously goes beyond this, the question is whether it should be allowed to proceed or considered doomed to fail.
[85] Although I share the motion judge’s scepticism about the ultimate success of the s. 7 claim, I agree with the result he reached that the claim should be allowed to proceed. It is not plain and obvious that, if proven, the psychological harm allegedly caused by Ontario’s management of DSO waitlists for Developmental Services to the vulnerable class members could not amount to a deprivation of the security of the person.
[86] And even to the extent the claim goes beyond that, it is important to recognize that claims should be struck with care: Imperial Tobacco, at para. 21. Novel claims that may incrementally develop the law should be allowed to proceed: Babstock, at para. 19. This may be particularly true for novel Charter claims that explore the scope of a right, as such claims often require a trial and an evidentiary record to fully understand the nature of the impugned state action and the harms experienced by claimants: Lorne Sossin and Gerard J. Kennedy, “Justiciability, Access to Justice and the Development of Constitutional Law in Canada”, (2017) 45:4 Fed. L. Rev. 707, at p. 719.
[87] It is worth repeating that in Gosselin, the majority of the Supreme Court left open the possibility of a positive obligation under s. 7 to sustain life, liberty, or security of the person being made out in special circumstances. While this court has held that this possibility alone is normally an insufficient basis for allowing novel positive obligation claims under s. 7 to proceed to trial, this claim is arguably distinct because the class members have already been assessed and approved for Developmental Services pursuant to the 2008 Disabilities Act. This feature arguably shares some similarities to the features of the s. 7 claim in Wareham that was permitted to proceed. As such, the positive obligation dimension of this claim may likewise warrant further consideration at trial.
[88] Finally, I reject Ontario’s argument that the pleadings do not sufficiently identify a principle of fundamental justice with which the appellant’s alleged deprivation fails to accord. The appellant alleges arbitrariness, with her pleadings asserting that Ontario has created an “arbitrary” system for administrating the waitlist for Developmental Services. Taken at its highest, the appellant’s s. 7 claim argues that the deprivation of the security of the person experienced by class members has no rational connection to the purpose of the state action.
[89] Accordingly, I am satisfied that the appellant’s pleadings allege the constituent elements to make out a viable s. 7 Charter claim and should be allowed to proceed to trial. . Meekis v. Ontario
In Meekis v. Ontario (Ont CA, 2021) the Court of Appeal considered principles of Charter damages:[174] In assessing this issue, I will focus, as did the motion judge, on the Supreme Court of Canada’s Charter damages framework in Ward v. Vancouver (City), 2010 SCC 27, [2010] 2 S.C.R. 28. In Ward, McLachlin C.J.C. set out the following four-part test governing the availability of Charter damages:1) Has a Charter right been breached?
2) Would damages fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches?
3) Has the state demonstrated countervailing factors that defeat the functional considerations supporting a damages award, rendering damages inappropriate or unjust?
4) If warranted, what is the appropriate quantum of damages? [175] Of importance in this pleadings appeal, the availability of Charter damages is an evolving area of law. As Moldaver J. stated in Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 35:Charter damages are a powerful tool that can provide a meaningful response to rights violations. They also represent an evolving area of the law that must be allowed to “develop incrementally”: Ward, at para. 21. When defining the circumstances in which a Charter damages award would be appropriate and just, courts must therefore be careful not to stifle the emergence and development of this important remedy. ....
[179] Under Ward, if the first two elements of the Charter damages framework are established, the burden shifts to the Crown to identify countervailing factors which could defeat any functional considerations in support of a damages award. . Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia
In Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia (SCC, 2020) the Supreme Court of Canada considers the issue of Charter damage immunity for Charter violations embodied in government policy:E. Does the Limited Government Immunity From Damages Awards Apply to Decisions Made in Accordance With Government Policies That Are Found to Be Contrary to Section 23?
[164] Governments have a limited immunity from damages awards in relation to infringements of the Charter. This immunity does not apply in the case of conduct that is “clearly wrong, in bad faith or an abuse of power” (Ward, at para. 39, quoting Mackin, at para 78). In the instant case, no one claims that the Province acted in bad faith. The issue is instead whether the immunity applies to decisions made in accordance with government policies.
[165] The limited immunity governments have can be raised when there are countervailing considerations against the payment of damages. Such considerations include, in particular, the existence of alternative remedies and concerns for good governance (Ward, at para. 33). The case at bar requires the Court to determine whether this limited immunity applies where an infringement results from a decision made in accordance with a government policy.
[166] The trial judge awarded damages to the CSF as a remedy for the infringement of s. 23 resulting from the inadequate funding of school transportation. The Court of Appeal, relying on Ward and Mackin, reversed the trial judge’s decision and cited the government’s limited immunity in this regard. It held that concerns for good governance justify affording governments immunity for decisions made in accordance with any type of government policy that is subsequently found to constitute an infringement. In my view, this was an error. There is no government immunity for decisions made in accordance with government policies.
[167] In Ward, this Court explained the approach to be taken in order to determine whether an award of damages is an appropriate remedy for an infringement of the Charter. A brief review of that approach will help to situate the limited government immunity in its proper context. The first step identified in Ward is to establish a Charter infringement. The second is to determine whether damages would serve a useful function or purpose. The functions of compensation, vindication and deterrence can satisfy this requirement. At the third step, the government may raise its limited immunity to oppose a damages award by citing considerations such as the existence of alternative remedies and concerns for good governance. These are not the only possible considerations, as others may be identified over time. The fourth step is to determine the quantum of the damages.
[168] This Court made it clear that there will be situations in which good governance concerns justify requiring that a minimum threshold of gravity be crossed before damages are awarded (Ward, at para. 39). One such situation had arisen in Mackin, in which a claimant sought damages for a government’s acts pursuant to a law that had been duly enacted but was subsequently found to violate the Charter. In that context, the Court concluded that the possibility of a damages award could have a chilling effect on the work of those who make laws and those who enforce them, owing to a fear of being held liable. Such an outcome would be unacceptable, because the legislature and those who enforce laws must be able to perform their functions without fear of reprisals. This means that there must be a minimum threshold of gravity and that, absent conduct that is “clearly wrong, in bad faith or an abuse of power”, damages may not be awarded under s. 24(1) for acts carried out pursuant to a law that is subsequently declared to be invalid and of no force or effect under s. 52(1) of the Constitution Act, 1982 (Ward, at para. 39, quoting Mackin, at para. 78).
[169] The Province argues that Ward extended the scope of the government immunity to include decisions made by a government in accordance with its policies. This Court noted at para. 40 of that case that “the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy‑making functions are one such area of state activity. The immunity is justified because the law does not wish to chill the exercise of policy‑making discretion.” Considered in its context, the concept of policy making relates to government policies that are based on laws. The Province’s argument in this regard must fail. Only one situation in which the limited immunity applies was recognized in Ward, that of government decisions made under laws that were duly enacted but were subsequently declared to be invalid.
[170] The Court did not, however, rule out the possibility that other situations might eventually justify the recognition of a limited immunity on grounds of good governance (Ward, at para. 42). This raises the question whether the possibility of damages being awarded in relation to decisions made by a government in accordance with its own policy could undermine good governance. In my view, awarding such a remedy in this context is unlikely to have a chilling effect on government actions and thereby undermine their effectiveness.
[171] On the contrary, the possibility of damages being awarded in respect of Charter‑infringing government policies helps ensure that government actions are respectful of fundamental rights.
[172] An overly broad application of the limited government immunity could in fact have undesirable effects. It would permit a government to avoid liability for damages simply by showing that its unlawful actions are authorized by its policies.
[173] This concern is accentuated by the fact that government policies do not usually result from a public process and that the “government policy” concept has not been defined. Does it concern any form of directives or guidelines issued by the government? If so, the immunity the Court is being asked to recognize would be very broad. In contrast, a law is an easily identifiable instrument. It is the product of a vote taken by a legislative body. The preparation of a law is a transparent public process that is central to the democratic process. It is therefore appropriate to give the government, in respect of a well‑defined instrument such as a law, an immunity that it is nonetheless inadvisable to give it for undefined instruments with unclear limits, such as government policies. The latter approach would reduce the chances of obtaining access to justice and an appropriate and just remedy for individuals whose rights have been infringed. The effect of expanding the scope of the government immunity like this is that bringing an action for damages in response to a Charter infringement would become illusory.
[174] In Ward, at para. 38, McLachlin C.J. in fact warned against an overly broad interpretation of good governance concerns that would have the effect of precluding any type of remedy:Good governance concerns may take different forms. At one extreme, it may be argued that any award of s. 24(1) damages will always have a chilling effect on government conduct, and hence will impact negatively on good governance. The logical conclusion of this argument is that s. 24(1) damages would never be appropriate. Clearly, this is not what the Constitution intends. Moreover, insofar as s. 24(1) damages deter Charter breaches, they promote good governance. Compliance with Charter standards is a foundational principle of good governance. [175] To extend the government immunity to all decisions made in accordance with government policies amounts to adopting the “extreme” form of good governance concerns that was explicitly rejected in Ward.
[176] Moreover, the government immunity for acts carried out under laws that were duly enacted is justified by the importance of the legislative process. In Mackin, at para. 78, Gonthier J. endorsed these remarks of Dussault and Borgeat concerning the liability of governments in civil matters, and noted that they apply in the Charter context: In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. [Footnotes omitted.]
(R. Dussault and L. Borgeat, Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at p. 177) [177] In this passage, the limited government immunity is justified by the fact that the law is the “source” of duty for the government. The enactment of laws is the fundamental role of legislatures, and the courts must not act so as to have a chilling effect on the legislatures’ actions in this regard. When the legislative branch enacts a law, it confers powers on the executive branch. In contrast, a minister’s decisions respecting school transportation are not a “source” of duty for the government in the same way as a law. When the executive branch adopts a government policy, it confers powers on itself. In light of this distinction, there is good reason not to extend the limited government immunity to government policies.
[178] In my view, there is no need in this case to identify every act that might be considered to be carried out under a law. For example, this appeal does not raise the question whether the government has a limited immunity when it makes orders in council or regulations pursuant to laws that have been duly enacted, and I will take no position on that question.
[179] In short, the general rule continues to be that damages can be awarded against a government where they are an appropriate and just remedy in the circumstances. However, the government may avoid such an award by raising concerns for effective governance. One situation in which it may oppose the payment of damages is where a law has been declared to be invalid after the act that caused the infringement, but it does not have immunity in relation to government policies that infringe fundamental rights.
[180] In the case at bar, the trial judge awarded $6 million in damages for chronic underfunding of the CSF’s school transportation system between 2002‑3 and 2011‑12. The Province had frozen funding for school transportation during that period, which coincided with a significant increase in the CSF’s enrolment, and this resulted in a deficit of between $6 and $14 million. However, the Court of Appeal reversed the decision to award damages on the basis of the limited government immunity and of the fact that damages are not an appropriate remedy absent conduct that is wrong. Because I have concluded that the limited government immunity does not apply in respect of government policies, and because the freeze on school transportation funding was a government policy, I would set aside the Court of Appeal’s conclusion and restore the trial judge’s order awarding damages for the inadequate funding of school transportation.
[181] The trial judge also found that the CSF had been denied $1.1 million by not having benefited from the Annual Facilities Grant Rural Factor. She held that this was an infringement of s. 23 but that the infringement was justified under s. 1. Given that I concluded above that this infringement was not justified, the appellants are therefore entitled to $1.1 million in damages on the basis that insufficient funding was granted for rural minority language schools. Since the parties are not disputing the quantum of the damages awarded by the trial judge, there is no reason not to accept it.
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