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Stare Decisis - 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".
Here the court consider 'criminal history' as an analogous Charter s.15 discrimination ground, largely in the context of 'immutable personal characteristics' - but dismisses the s.15 claim for evidentiary inadequacy (and, apparently, because they want an adequately prepared case for Charter stare decisis purposes: para 64):(2) Section 15 of the Charter
[60] The applicants submit s. 2(d)(i) violates their right to equal treatment protected by s. 15(1) of the Charter. In their submission, s. 2(d)(i) draws a distinction based on criminal history, which they say is an analogous ground. They argue that people with criminal histories experience systemic disadvantage, particularly in employment, and that s. 2(d)(i) reinforces, perpetuates, and exacerbates that disadvantage by further limiting their opportunities to work.
[61] To succeed in their s. 15(1) claim, the applicants must demonstrate that s. 2(d)(i): (a) on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and, (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, 490 D.L.R. (4th) 1, at para. 188; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 28.
[62] The applicants have not succeeded in meeting this test. They fail at the first step because they have not demonstrated, on the evidence before us, that criminal history constitutes an analogous ground.
[63] The applicants say the question of whether criminal history constitutes an analogous ground has not been definitively decided. They rely, for example, on Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, where, at para. 132, the Supreme Court of Canada assumed without deciding that having a criminal record was an analogous ground of discrimination under s. 15(1). The respondent meanwhile points to cases it says would preclude recognizing criminal history as an analogous ground, such as Canada (Minister of Employment and Immigration v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711 (regarding the deportation of permanent residents convicted of an offence punishable by imprisonment for five years or more) and Association des policiers provinciaux du Québec c. Sûreté du Québec, 2007 QCCA 1087, leave to appeal to SCC refused, 2008 CanLII 3198 (regarding the dismissal of police officers for being convicted of indictable offences).
[64] In our view, this is not an appropriate case to determine whether having a criminal history constitutes an analogous ground. The test for recognizing a ground of distinction as analogous is high. In Fraser v Canada, 2020 SCC 28, [2020] 3 S.C.R. 113, at paras. 117 to 123, the Supreme Court declined to recognize a new analogous ground of family status in part because the evidentiary record and parties’ submissions did not “provide the necessary assistance” to explore the implications of such a finding. A finding of a new analogous ground is not limited to the facts of a particular case. As Abella J. stated: “It is either a sustainable legal principle that this Court should accept or it is not”: Fraser, at para. 115.
[65] In British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767, 458 D.L.R. (4th) 692, a case involving the recognition of parentage to a child of a polyamorous relationship, the British Columbia Supreme Court also declined to recognize family status as an analogous ground. The court was concerned about the limited social science research in evidence. In addition, the focus of submissions had been on polyamorous families and did not adequately address the implications of family status as a ground more broadly.
[66] The problem is similar here. The applicants have provided social science evidence, in the report of Dr. Norris. However, Dr. Norris’ evidence focuses almost exclusively on disadvantage to people with criminal histories in the labour market. According to Dr. Norris, people with criminal records have lower levels of employment and earnings before they are first convicted of a criminal offence, are subject to discrimination when applying for jobs, have fewer types of employment positions available to them, and have reduced earnings and employment.
[67] This economic evidence is insufficient for us to determine whether criminal history should be an analogous ground. Analogous grounds are centered on immutable personal characteristics central to a person’s identity. In Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, at para. 13, the Supreme Court described enumerated grounds as often serving “as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.” As stated in R. v. Banks, 2007 ONCA 19, 84 O.R. (3d) 1, at para. 100, “in determining whether a personal characteristic qualifies as an analogous ground under s. 15, one must consider whether it cannot be changed without unacceptable cost to one’s identity and dignity.”
[68] Banks involved a Charter challenge to statutory provisions that prohibited “squeegeeing” and solicitation of people in vehicles, including under s. 15(1). The Court of Appeal found that the proposed group, referred to as “beggars,” did not constitute an analogous ground. The Court reached this conclusion in part because the appellants had not “put forward their lack of fixed addresses and the fact that they beg as components of a culture that is important to their identity. Rather they have put these matters forward as indicators of their economic status with which they have to cope”: at para. 101.
[69] We are not deciding whether criminal history could constitute an analogous ground on a different record. But like in Banks, the thrust of the record before us is about the applicants’ economic circumstances — that is, that having a criminal history limits employment opportunities and earnings potential. We recognize that Dr. Norris provides some information about the pre-existing disadvantage faced by people with criminal histories, such as that marginalized ethnic and racial groups are over-represented in the group, that offenders tend to have lower levels of education, and that people with a history of criminal justice involvement are disproportionately from low-income backgrounds. But Dr. Norris does not explore these factors in any detail, nor connect them to an overall identity of the group or an ongoing collective experience of disadvantage, other than in the labour market. The evidence also does not demonstrate that these disadvantages apply to the applicants, other than that neither applicant completed high school. Overall, the evidence does not draw a sufficient connection between the circumstances of people with criminal records and their identity as compared to their economic circumstances. Nor does the evidence focus on the people with a weapons restriction, which is the only subsection challenged here, and explain any differences between those people and others with a criminal record. There are many other criminal convictions that are disqualifying under s. 2 of the Regulations, which the applicants do not challenge as unconstitutional.
[70] One of the problems with the absence of evidence and submissions beyond labour market impacts is the court is unable to properly consider other consequences of finding criminal history as an analogous ground. As the respondent points out, criminal history is widely considered in many areas of professional and business regulation. It is also considered in the criminal justice system, such as for sentencing, bail, or for deciding an inmate’s security classification. Criminal history is further relevant in child protection matters and immigration matters. Without a more robust record and submissions addressing the potentially wide impacts, it is not appropriate for the court to determine whether criminal history should be treated as an analogous ground in this case.
[71] Because the applicants have not shown criminal history is an analogous ground, they have not met the first part of the s. 15(1) test. Their claim under s. 15(1) accordingly fails. . R. v. Hafizi
In R. v. Hafizi (Ont CA, 2023) the Court of Appeal restates key SCC charter stare decisis doctrine:(i) Stare decisis
[105] As has been shown, Mahal said nothing new. It is entirely consistent with prior authority, including prior Supreme Court authority. Thus, effectively, we are not only being asked to overturn multiple decisions of this court, including Mahal, but we are also being asked to depart from Supreme Court authority. In these circumstances, I need only address vertical stare decisis.
[106] It is not open to this court to depart from Supreme Court authority except in exceptional circumstances. The Supreme Court explained those exceptions in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42:In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [107] Those exceptions do not apply in this case. No new Charter provisions are raised in this case. There have not been significant changes in the law: Hunter is still good law and Finlay, which applies Hunter, has stood the test of time, having been given the stamp of approval by the Supreme Court of Canada. While the appellants, CLA and CCLA argue that this court should respond to an increase in the use of electronic communications and the new technologies available to intercept such communications, I do not see those changes as supporting the change in the law that they seek.
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