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Charter - Interpretation. Ontario (Minister of Health) v. Grassroots for Affordable Jewish Education Inc.
In Ontario (Minister of Health) v. Grassroots for Affordable Jewish Education Inc. (Div Court, 2024) the Divisional Court allowed a civil Crown appeal against an order that refused a motion to quash an application seeking public funding for Jewish schools, here on grounds that the SCC had "had definitively decided the issues" raised".
The court considers constitutional interpretation, here in light of international law:[26] .... The Supreme Court of Canada has explained that the proper approach to constitutional interpretation is the purposive approach adopted in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. It must begin with the text of the provision but also be conducted by reference to the historical context, the larger objects of the Charter and, where applicable, the meaning and purpose of associated Charter rights: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at paras. 7-8.
[27] While international law can play a role, 9147-0732 Québec Inc., at para. 28, made clear that role is limited:This Court has recognized a role for international and comparative law in interpreting Charter rights. However, this role has properly been to support or confirm an interpretation arrived at through the Big M Drug Mart approach; the Court has never relied on such tools to define the scope of Charter rights. [Emphasis in original.] . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court reviews principles of Charter interpretation:(1) Charter Interpretation
[25] We start with the proper approach to Charter interpretation.
[26] The Charter must be given a generous and expansive interpretation; not a narrow, technical or legalistic one (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 156). Charter provisions must be “interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts” (Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 25).
[27] A purposive approach considers constitutional principles. Indeed, “the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text” (Reference re Senate Reform, at para. 26). . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
The court considers the bilingual nature of Charter interpretation, here in the Charter s.25 context:(a) Text of Section 25
[119] First, the text of s. 25 plainly suggests the protective purpose of the provision. Two aspects of the wording are significant. The first is the operative terms used in the English and French texts — “shall not be construed so as to abrogate or derogate” from certain Indigenous rights in English, and “ne porte pas atteinte” to those rights in French — which signal that s. 25 protects against an inappropriate impairment of the collective Indigenous right that would flow from applying the conflicting individual Charter right or freedom. This strong language has been seen by some as the surest sign that s. 25 operates as a “bar” or a “shield” against applying a Charter right that would diminish a relevant collective Indigenous interest. The second indicium bears on the character of the Indigenous rights that are relevant under s. 25. The phrase “that pertain to the aboriginal peoples of Canada” or “des peuples autochtones du Canada” suggests a guide to the proper scope of s. 25’s protection.
[120] For some, the reference to the fact that the individual Charter rights “shall not be construed” to abrogate or derogate from the collective Indigenous interest in the English version — absent from the French text — gestures to an interpretative dimension to s. 25. In addition, the words “pertain to” in the English version points to a wide berth for such other rights as they relate to Aboriginal peoples; others see the reference in the French to “des peuples autochtones” as more confining. Given that an understanding of s. 25’s purpose will begin with the text, it is important to examine these two indicia carefully and to dispel any sense that the French and English versions of the provision diverge from a shared meaning around a single purpose of protecting collective Indigenous interests from being diminished by individual Charter rights.
[121] The French and English texts are, of course, equally authoritative as expressions of the intent reflected in s. 25 (see s. 57 of the Constitution Act, 1982; R. Sullivan, The Construction of Statutes (7th ed. 2022), at pp. 114-15). It is a recognized principle of bilingual interpretation, applicable to the Charter, that the exercise of discerning legislative intent can properly include the search for a shared meaning between the two linguistic texts, typically identified by reading both versions together (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 287-88; R. v. Lewis, 1996 CanLII 243 (SCC), [1996] 1 S.C.R. 921, at para. 72; see also P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at No. 1126).
[122] In Kapp, Bastarache J. analyzed the text of s. 25 at some length, including possible discordances between the French and English versions as one measure of meaning for the provision. We agree with Bastarache J.’s conclusion that the observable differences in wording between the French and English versions are not decisive as to the meaning of s. 25 and that, read together, they support a view of a single protective purpose (see paras. 86 and 101-3).
[123] The language of “abrogate or derogate” and “porte . . . atteinte” (i.e. impairs, or harms) suggests that the purpose of s. 25 is what this Court has called, on occasion, a “non-derogation clause in favour of the rights of [A]boriginal peoples” (Secession Reference, at para. 82) or a provision that “shields” Aboriginal rights from being abrogated or derogated from (Desautel, at para. 39). The chosen phrases both signal that s. 25 may act as a bar against the abrogation of or derogation from Indigenous collective interests by conflicting individual Charter rights. The texts speak to this somewhat differently. Scholar Jane M. Arbour usefully noted that the French text is more “declaratory” of the protective effect of s. 25 that would apply if a claimant’s individual Charter right impaired the relevant Indigenous collective interest (p. 27). By comparison, she wrote, the language of “shall not be construed” in the English text refers explicitly to an interpretative exercise (p. 27 (emphasis deleted)). She did not see this difference of emphasis, however, as having any consequence in law.
[124] There is a shared meaning for the central protective purpose conveyed by the two linguistic texts. To determine whether the relevant Indigenous collective interest should take precedence over (or be shielded from) a claimant’s individual Charter right, one must discern whether what Bastarache J. called the two “competing rights” are in conflict, which requires that they be interpreted or “construed” (Kapp, at para. 87). This interpretative exercise is spoken to explicitly in the English text and is implicit in the more declaratory French text: one would have to interpret the two rights in question in order to conclude that the individual Charter right “porte . . . atteinte” (i.e., impairs or harms) the Indigenous collective interest. Similarly, one could only conclude that the effect of the individual Charter right is to “abrogate” (i.e., nullify or repeal), or to “derogate” from (i.e., detract or depart from), the collective right after having identified, through an initial exercise of interpretation of the competing interests, whether the collective right is incompatible with the individual Charter right or freedom. The French text uses a generic term to describe the effect of a conflict (“porte . . . atteinte”). The English text refers to the same idea by specifying how the effect of the conflict manifests itself (“abrogate or derogate”). Thus, the shared meaning in English and French suggests that s. 25 has both interpretative and shield dimensions, both of which are relevant to the purpose of the clause. The difference in expression is best explained by the exigencies of linguistic form.
[125] Yet the mandatory language in the English text (“shall not be construed”) and the declaratory formulation of the French (“ne porte pas atteinte”) suggests the compass of interpretation is limited and, in both texts, any judicial discretion in interpreting the competing individual and collective interests is constrained by the direction that the construction of the individual right cannot extend beyond the point of conflict with the protected minority interest. In sum, both linguistic versions of the Charter are “not only reconcilable, they are different ways of expressing the same idea” (9147-0732 Québec inc., at para. 65, per Abella J., dissenting, but not on this point).
[126] In a closely related context, the UNDRIP Act contains a provision in its division on “Interpretation”, in its English and French texts, that maintains Indigenous rights in a similar fashion. Section 2(2) provides: “This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them” (in French, “elle n’y porte pas atteinte”). This supports the view that the “upholding” or “maintien” of Indigenous rights under the protective purpose of s. 25 of the Charter can involve elements of a shield and of an exercise of construction.
[127] Similarly, the difference in emphasis between “pertain to the aboriginal peoples”, in the English version of s. 25, and “des peuples autochtones”, in the French version, is of no legal consequence in light of the clear shared meaning between the two versions. It is true that “pertain to” has a potentially broad meaning extending beyond rights that would belong to Indigenous peoples to include those that might relate to them more incidentally. The use of the French possessive “des” is plainly narrower. Professors Pierre‐André Côté and Mathieu Devinat explain that, in such instances, [translation] “the shared meaning is thus the more narrow of the two” (No. 1131). In this case, the narrower meaning conveyed by the French text is shared with the English text: “des peuples autochtones” alludes to rights that belong to or benefit Indigenous peoples qua Indigenous peoples or, as Bastarache J. observed in Kapp, that “are particular to them” (para. 101). This closer connection between the right or freedom and Indigenous peoples will prove important, as we shall see, in the measure of what scholars have described as the “Indigenous difference” spoken to in the rights or freedoms in s. 25.
[128] We also observe that the marginal notes for s. 25 characterize the provision as “Aboriginal rights and freedoms not affected by Charter” and “Maintien des droits et libertés des autochtones”. Marginal notes are of course not an integral part of the text, and thus no definitive weight should be attributed to them when construing Charter provisions (see R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at pp. 556-58). But however limited their interpretative value, these notes support the view that s. 25’s purpose is to guard against certain effects on rights belonging to the Indigenous peoples of Canada that would flow from applying the Charter.
[129] Finally, it is noteworthy that the language in s. 25 is also found in ss. 21 and 22 of the Charter on the maintenance of certain language rights, and s. 29 on the maintenance of rights regarding certain schools. These provisions use phrasing similar to s. 25: “[n]othing in [the relevant provisions] abrogates or derogates from [pre-existing rights]” along with the French “n’ont pas pour effet de porter atteinte”. Section 29, a Charter provision found (as is s. 25) in the “General” / “Dispositions générales” division of the Charter, has been allied with s. 25 as bearing on the underlying constitutional principle of the protection of minority rights (Secession Reference, at paras. 79 and 82). Section 29, with this similar vocation to s. 25’s, was interpreted by this Court in Reference re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, by Wilson J., who wrote that “s. 29 is there to render immune from Charter review rights or privileges which would otherwise, i.e., but for s. 29 be subject to such review. . . . [T]hey are insulated from Charter attack” (p. 1198). Commenting on the relevance of these related provisions to the purposive interpretation of s. 25, prior to his appointment to the bench, Professor Kenneth M. Lysyk has written that the “common feature of all these provisions [(i.e., ss. 21, 25, 26 and 29)] is that they are saving clauses designed to protect rights that exist independently of the Charter itself” (“The Rights and Freedoms of the Aboriginal Peoples of Canada”, in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (1982), 467, at p. 471). This further supports the view that the text of s. 25 has a protective purpose of safeguarding Indigenous rights from incursions by individual Charter rights. . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the court sets out the 'purposive' Charter interpretation:[113] This Court has long recognized that the Charter must be interpreted purposively (see Hunter, at pp. 156-57; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 32). A purposive approach engages with the text of the provision in question as a first factor, and then turns to “the character and the larger objects of the Charter itself . . ., to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated” (Poulin, at para. 32, citing Big M Drug Mart, at p. 344; see also Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 10). . Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal noted that "(p)rovisions in the Constitution cannot be interpreted and applied to amend, modify or nullify other provisions in the Constitution":[54] If sections 7, 9, 12 and 15 of the Charter were given the scope the respondents give them here, subsection 6(1) of the Charter would be paved over: it would become completely redundant. Provisions in the Constitution cannot be interpreted and applied to amend, modify or nullify other provisions in the Constitution: Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585 at para. 24; Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609, (1996), 140 D.L.R. (4th) 385; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238 at para. 14. Subsection 6(1), a specifically worded right meant to govern this sort of circumstance, applies in this case and is not overborne by other, more broadly worded, general rights. . Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considered the past and current history of Charter interpretation:(a) The proper approach to Charter interpretation
[16] Soon after the Charter came into force, the Supreme Court told us how to interpret Charter rights and freedoms.
[17] Early in our analysis, we must examine the text of Charter rights and freedoms—words that can be changed only by following specific provisions of the Constitution Act, 1982. But the words, properly construed, are only one consideration: other considerations come to bear and can shape the interpretation in significant ways.
[18] The Supreme Court’s classic statement on this is as follows:... [T]his analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.
(R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 at 344 S.C.R.) [19] For the first two decades under the Charter, the Supreme Court consistently followed the Big M approach. That made sense. Except in the rarest, most justified circumstances, once the Supreme Court lays down the law, that law must be obeyed by all—even by the Supreme Court itself: R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489. This is especially the case for foundational jurisprudence that has been around for decades, like Big M.
[20] But starting around the turn of this century, the Supreme Court began toying with a looser approach, one that has now been discredited and rejected. Under that approach, well-described in the majority reasons of Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, the text was not so much a constraint or an expression of the meaning of constitutional provisions. Rather, it was a cue, prompt or springboard for the Court to fashion a much broader underlying feel, spirit or vibe to widen the scope of the provisions. As a result, sometimes new unwritten constitutional rights, far removed from the constitutional text, were "“discovered”": see, e.g., Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31 (broad right of access to courts found under the Attorney General’s judicial appointment power); Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 (extremely expansive overbreadth doctrine developed under section 7). Unsurprisingly, under this looser approach, the Supreme Court began to strike down or circumvent some decades-old binding precedents, with doctrinal inconsistency the result. See e.g., Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; see also the examples during this time of doctrinal inconsistency listed in Schmidt v. Canada (Attorney General), 2018 FCA 55, [2019] 2 F.C.R. 376 at paras. 91-95.
[21] In 2020, the Big M approach and the looser approach met for a showdown. The case of 9147-0732 Québec Inc., above was the battlefield. The Big M approach won.
[22] For good measure, soon afterward, a majority of the Supreme Court doubled down on this, reaffirming the proper role of text in constitutional interpretation: Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1. Now no doubt remains. And given the doctrine of precedent that binds all, including the Supreme Court, no doubt can remain. The matter has been settled once and for all. We must interpret the Charter following the Big M approach.
[23] Gone is inspiration from some vague feel, spirit or vibe, things that are in the eye of the beholder. In its place is a rigorous, objective and disciplined judicial task guided by the words of the Constitution itself viewed in light of their historical context, the larger objects of the Constitution, and, where applicable, the meaning and purpose of associated provisions in the Constitution. After all, "“if [our] job is to enforce the Constitution, then the Constitution is what [we] should be enforcing, not whatever might happen to strike [us] as a good idea at the time”": John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980) at 12.
[24] The Supreme Court’s recent, dual approval of the Big M approach has brought us more doctrinal stability under the Charter, at least in the area of civil cases. This is welcome. Stability furthers the separation of powers between the judiciary and other branches of government: it keeps the judiciary in a predictable, appropriate lane. Stability brings us certainty, predictability, and freedom: it gives us consistent jurisprudence about what governments can and cannot do and about what they can be required to do. Stability bolsters the rule of law and increases confidence in the legal system. The people we serve deserve to be governed by lasting legal doctrine carefully shaped and sculpted over the years by many—not by the personal diktat of whoever happens to sit in a particular judicial chair at a particular moment of time.
[25] So faced with a Charter question, how do we proceed? Under the Big M approach, early on we must examine the text of the Charter right or freedom: 9147-0732 Québec Inc. at paras. 8-9, citing British Columbia (Attorney General) v. Canada (Attorney General), 1994 CanLII 81 (SCC), [1994] 2 S.C.R. 41, 114 D.L.R. (4th) 193 (the Vancouver Island Railway case), R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566 at para. 32 and Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511 at paras. 36-37. The rule of law "“requires that courts give effect to the Constitution’s text”": British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 at para. 67. The text has "“primordial significance”", supplies the "“outer bounds”" to any examination of the underlying purpose of the provision, prevents the Court from adopting an interpretation that "“overshoots…the actual purpose of the right”" and is "“a foundation and a touchstone for the exercise of constitutional judicial review”": Big M at p. 344; 9147-0732 Québec Inc. at para. 10; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144 at paras. 21 and 126; Caron at para. 36; Vancouver Island Railway at 88; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 at paras. 17-18 and 40; Toronto (City) at para. 14; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at para. 53.
[26] But we do not stop with the text. That would be pure textualism—the delegation of our judicial task to find the authentic meaning of a constitutional guarantee to a dictionary. Rather, as mentioned above, we must look for "“the scope and purpose of the right”" or freedom in question by looking to "“the [philosophical and] historical context [of the right or freedom], the larger objects of the Charter, and, where applicable, the meaning and purpose of associated Charter rights”": 9147-0732 Québec Inc. at paras. 7 and 13, citing the classic passage from Big M, above. In some cases, an important part of the task is to "“[interpret] the text in a way that is true to the theories on which the text is based”", and an analysis of the structure of the Constitution can shed light on this: Hon. Malcolm Rowe and Manish Oza, "“Structural Analysis and the Canadian Constitution”" (2023) 101 Can. Bar Rev. 205 at 222, citing Kate Glover, "“Structure, Substance and Spirit: Lessons in Constitutional Architecture from the Senate Reform Reference”" (2014) 67 S.C.L.R. 221 at 236.
[27] In short, although in some cases specific text might take us far, it does not necessarily take us all the way down the road to the final destination. But often it can supply essential guardrails and signposts guiding our way and keeping us on track.
[28] Under the Big M approach, where do international and foreign law fit in? They can play a role in Charter interpretation, sometimes significant, by supporting or confirming the result reached by purposive interpretation under the Big M approach: 9147-0732 Québec Inc. at paras. 19-47. As well, some Charter guarantees—and as we shall see, subsection 6(1) of the Charter is one such guarantee—were modelled after provisions in international law instruments. Thus, international jurisprudence under those provisions can often play an important role in the interpretive process.
[29] But international law and foreign law do not displace or supplement the Big M approach. They have a defined, limited role, not the sprawling, undisciplined role they had under the looser approach: see 9147-0732 Québec Inc, and, in particular, the comments in the majority opinion about the dissenting opinion’s misuse of international law. When we interpret the Charter, international law and foreign law are not "“a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please”": Canada (Attorney General) v. Kattenburg, 2020 FCA 164 at para. 26. As well, different sources of international law have different value in the interpretive process: see generally 9147-0732 Québec Inc. at paras. 29-38.
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