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Professionals - Charter. Thibault and Ramsay v. Attorney General of Ontario
In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".
The court considers the Charter s.12 ['cruel and unusual treatment or punishment'] argument, here in a professional context (tow truck drivers):(3) Section 12 of the Charter
[72] Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”.
[73] The applicants submit that the exclusion provided for in s. 2(d)(i) is “treatment or punishment.” We disagree.
The exclusion under s. 2(d)(i) does not constitute “treatment” under s. 12
[74] According to the applicants, a “treatment” within the meaning of s. 12 is a “process or manner of dealing with a person or thing” and to engage s. 12, there must be some active state process involving the exercise of state control over an individual. The applicants argue that s. 2(d)(i) satisfies this definition because it excludes a class of people from the towing industry — including people like them who have already worked in that industry for decades — without any opportunity for discretion, judicial review, or appeal. It is the state, rather than individual employers or an administrative regulatory body, which determines who can and cannot be a tow truck driver or operator. Ultimately the state is determining who can earn a living. This includes people like the applicants, who have worked as truck drivers/operators most of their adult lives. In the applicants’ submission, this points to a high degree of state control over the economic circumstances of people who are already economically vulnerable because of their criminal history.
[75] In making this submission, the applicants acknowledge that the Ontario Court of Appeal has found that the mandatory revocation of a licence as part of a regulatory regime is not “treatment or punishment”. However, they argue that s. 2(d)(i) is different. They submit that it is not providing for revocation based on misconduct; it is a pre-emptive disqualification of individuals from a trade based on a historic criminal conviction.
[76] In Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, the Supreme Court dealt with a constitutional challenge to a statutory scheme pursuant to which a permanent resident could be deported if they had been convicted of an offence for which they could be sentenced to a term of imprisonment of five years or more. One of the bases for the challenge was a claim that the scheme violated s. 12 because it constituted a treatment. Sopinka J., who wrote the judgment for the Court, commented that deportation might constitute a “treatment” under s. 12. In doing so, he relied on a dictionary definition of “treatment” that defined it as “a process or manner of behaving towards or dealing with a person or thing…”. Ultimately, however, Sopinka J. did not decide the point, as he found that even if the deportation authorized in the statute under consideration could be considered a treatment, it was not cruel and unusual.
[77] In Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, the Supreme Court considered a constitutional challenge to the provisions of the Criminal Code prohibiting assisted suicide. Sopinka J., who wrote the majority decision, was prepared to assume for the purposes of the s. 12 analysis in that case, that “treatment” could include actions imposed by the state in contexts other than those of a penal or quasi-penal nature. He also allowed for the possibility that “treatment” was not confined to positive actions by the state. In particular, he cited an example of the state prohibiting smoking in prisons. This prohibition could amount to “treatment” because the prisoners affected were subject to state control. However, he found that merely being subject to the edicts of the Criminal Code, as all individuals are, did not constitute “treatment”. There had to be “some more active state process in operation, involving an exercise of state control over the individual” to amount to “treatment”: at p. 612. Merely because a state prohibition impacts an individual more seriously than another individual is not enough.
[78] In Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), the Ontario Court of Appeal found that the mandatory revocation of a physician’s licence because of sexual abuse of patients affected only economic interests, which are not Charter protected. It also considered whether it constituted “treatment” within the meaning of s. 12. The Court decided that it did not. In doing so it reviewed the Supreme Court jurisprudence on the matter and found that while the extent to which “treatment” may apply outside the penal context may not have been definitively determined, a mandatory revocation provision was very different than the other state measures that the jurisprudence has recognized as possibly including treatment — namely lobotomies, castration, and deportation.
[79] In Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, the Ontario Court of Appeal addressed the constitutionality of a mandatory licence revocation provision for dental hygienists who engage in a sexual relationship with a patient. In that case the hygienist subsequently married the patient. The Court convened a five-member panel to determine if cases such as Mussani remained good law.
[80] First the Court of Appeal reiterated that the mandatory revocation of a health professional’s certificate of registration affects an economic interest that is not protected by s. 12 of the Charter. The same is true in this case.
[81] Second, the Court of Appeal once again found that while “treatment” within the meaning of s. 12 may extend beyond state action associated with criminal law, “there is no authority supporting the premise that professional regulation constitutes ‘treatment’ within the meaning of s. 12”: at para. 54.
[82] Contrary to the assertions of the applicants, the weight of this authority is that the exclusion in s. 2(d)(i) of the Regulation cannot be considered treatment within the meaning of s. 12. First, the interests affected are economic, which are not subject to Charter protection. Second, s. 2(d)(i) is analogous to the mandatory revocation of a professional licence, which the Court of Appeal has twice decided is not “treatment”. Third, as in Rodriguez, the exclusion contained in s. 2(d)(i) is just a prohibition. There is no “more active state process in operation, involving an exercise of state control over the individual”: Rodriguez, at p. 612.
The exclusion under s. 2(d)(i) does not constitute “punishment” under section 12
[83] In R. v. Wiles, the Supreme Court of Canada determined that s. 109 of the Criminal Code constitutes treatment or punishment. According to the applicants, the effect of s. 2(d)(i) is to further sanction or punish them for their crimes by providing that, even many years later, they are unable to be a tow truck driver or operator.
[84] In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39, the Supreme Court stated that a measure constitutes punishment if “(1) … it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) … is imposed in furtherance of the purpose and principles of sentencing, or (3) … has a significant impact on an offender’s liberty or security interests.” Section 2(d)(i) does not satisfy this test.
[85] Section 2(d)(i) has nothing to do with sentencing. It is part of a scheme to further consumer protection and public safety objectives relating to the towing industry. It is a civil consequence that flows from the applicants’ past convictions and has nothing to do with the objective of sentencing or punishing the applicants for their past crimes.
[86] “Punishment” under s. 12 does not encompass all consequences that may flow from having a criminal conviction; a law does not become “punishment” if it imposes consequences to further an objective distinct from sentencing: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 63-65. In Chiarelli, the Supreme Court held that the mandatory deportation of permanent residents convicted of a serious crime was not punishment. Many courts have held that the mandatory suspension or denial of a driver’s licence following Criminal Code convictions is not a further punishment: see R. v. Miller (1988), 1988 CanLII 4685 (ON CA), 65 O.R. (2d) 746 (C.A.).
[87] Finally, s. 2(d)(i) does not affect the applicants’ liberty or security interests. As noted in Siemens v. Manitoba, 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45: “The right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests.”
[88] The applicants argue that their interests extend beyond the purely economic as the inability to earn a livelihood has a profound impact on one’s dignity and psychological health. The same submission was made and rejected in Tanase. While the Court of Appeal acknowledged the significant impact that losing the right to practice one’s profession can have on a person, it confirmed at para. 42 that “[r]evocation of the appellant’s certificate of registration for violating the Code engages neither the right to liberty nor the right to security of the person.” As we have already found, the provision in s. 2(d)(i) is comparable to the provisions under consideration in Tanase, as they have the effect of depriving the applicants of their right to continue in their chosen employment. As such, it is not “punishment” within the meaning of s. 12.
Conclusion re s. 12
[89] As the exclusion in s. 2(d)(i) is neither “treatment” nor “punishment,” the applicants’ argument that it violates s. 12 of the Charter has no merit.
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