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Precautionary Principle - Trinity Bible. Ontario (Attorney General) v. Trinity Bible Chapel
In Ontario (Attorney General) v. Trinity Bible Chapel (Ont CA, 2023) the Court of Appeal considered a church group's appeal against a dismissal of their Charter s.52 declaration application involving the COVID provisions of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
In these quotes the court considers and endorses the application of the scientific-themed 'precautionary principle' (in it's Charter s.1 analysis), notably expanding it beyond it's previous environmental context [see my italicizations at para 105, 109-110]:(i) The motion judge did not err in her treatment of the precautionary principle
[105] The motion judge framed the question of whether the challenged regulations were minimally impairing against the evolving understanding of COVID-19 transmission when the various regulations were enacted:Moreover, Ontario is not required to justify its choices on a standard of scientific certainty. That would set an impossible burden, particularly where, as here, the social problem defies scientific consensus. “The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened”: see Hutterian, at para. 37. I agree with Burrage J. in [Taylor v. Newfoundland and Labrador, 2020 NLSC 125], at para. 411 that: “given the emergent and rapidly evolving developments, the time for analyzing evidence shrinks, all the more so when the margin for error relates to serious illness and/or death.”
It is here that the precautionary principle is engaged. Conceived in connection with climate change, this principle is a key factor in matters of public health. It recognizes that, where there are threats of serious, irreversible damage, lack of full scientific certainty is not a reason to postpone harm reduction strategies. To wait for certainty is to wait too long. Clearly, Ontario was not required to wait for scientific unanimity on the properties of the pandemic before taking steps to prevent illness and death. We would still be waiting for that chimeric marker were it the catalyst for action. [106] The appellants submit the motion judge erred in considering the precautionary principle in two ways. First, she confused medical debates on the precautionary principle and scientific certainty with the governing legal test, which is demonstrable justification on a balance of probabilities. The Charter analysis requires potential health risks to be balanced against values like freedom of religion and expression. The government ought to err on the side of protecting fundamental freedoms, not the inverse.
[107] Second, according to the appellants, the motion judge effectively gave Ontario deference which ought to be reserved for experts exercising administrative functions. The challenged regulations are the decisions of government, not public health officials. They point out that because Cabinet discussions are privileged, there is no evidence as to what expert medical opinion the government in fact relied on when implementing the restrictions.
[108] The appellants are right to emphasize that the government cannot escape accountability for its decisions just because they were made during a public health crisis. They are also right to highlight that deference to public health experts during such a crisis does not lead to a different constitutional standard of scrutiny of regulations enacted by government.
[109] I do not accept, however, that the motion judge erred in the manner suggested by the appellants.
[110] In my view, it was appropriate for the motion judge to consider the precautionary principle as informing whether and how the state could meet its objectives of reducing transmission risk and saving lives in a situation of scientific uncertainty. This accords with the contextual approach to the Oakes test generally. As stated in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 77, “Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm.” See also Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 115; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 85; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 132-34.
[111] By the same token, a reasoned or reasonable apprehension of harm does not mean governments can justify infringing Charter rights based on apprehension alone. The minimal impairment analysis still requires an evidentiary basis to show why a measure is a reasonable means of achieving a pressing and substantial objective. While not a constitutional standard in itself, the precautionary principle helps inform what it means to rely on a reasoned apprehension of harm where scientific certainty is not possible.
[112] This court considered the role of the precautionary principle in R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 81, leave to appeal refused, [2015] S.C.C.A. No. 450. The court found that legislation requiring a commercial truck driver to equip his truck with a speed limiter infringed his right to security of the person under s. 7 of the Charter. In concluding the limitation was justified under s. 1, the court suggested that the precautionary principle as developed in environmental law, and recognized by the Supreme Court in that context, is well-suited to regulatory situations where human life or safety is at stake, and where there is scientific uncertainty as to the precise nature or magnitude of the possible risks: see paras. 100-03, 126-28. It is also important to note that, in Michaud, it was the combination of ex ante (precautionary) and ex post (deterrent) measures that was found to justify the regulatory approach chosen to achieve the objective of highway safety.
[113] This observation is equally if not more apposite when considering the complex regulatory scheme of Ontario’s COVID-19 response. In Grandel v. Saskatchewan, 2022 SKKB 209, the Saskatchewan Court of King’s Bench found the precautionary principle was “essential” in the s. 1 context when reviewing the government’s response to COVID-19 where “some cause and effect relationships are not fully established scientifically”: at para. 84.
[114] The motion judge invoked the precautionary principle in a similar fashion here to explain why it was reasonable for Ontario to act in the manner it did, in the absence of scientific certainty.
[115] In my view, this application of the precautionary principle was consistent with the jurisprudence and did not introduce an excessively deferential standard into the s. 1 analysis.
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