3. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
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Introduction:
More than 30 years have elapsed since adoption of the Canadian Charter of Rights and
Freedoms. The Charter was drafted by the men and women of Canada. As recorded in his
memoir, P.M Trudeau viewed the Charter as “a system of values such as liberty, equality and the
right of association that Canadians from cost to cost could share1
”. This desire to anchor
Canadian unity in equality and in individual rights did not stop some individuals, advocacy
groups and First Nations from pushing forward to include language rights, women’s equality,
multicultural heritage and Aboriginal rights under the protection of the Canadian Constitution.
The outcome was that Canada had a document which embodies Canadian values among others,
freedom of expression, freedom of religion, freedom of associations, right to life security and
liberty and equality rights. Through the Charter, Canadian men and women saw themselves as
full participants in its crafting, able to draw a new image of Canada. Their efforts did not stop at
drafting individual or group rights in the Charter. They endeavoured to balance those rights with
the public good, while staying faithful to Canadian values. Thus in some cases individual rights
may yield in the face of border collective interests, through the balancing of the competing
interests as required by s.1 of the Charter. S.1 guarantees the rights and freedoms entrenched in
the Charter but it reveals that they are not absolute. They are subject to “reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society2
”. In its
beginning s.1 was interpreted as imposing stringent requirements of justification. But with the
passage of time courts stopped adhering to those strict standards of justification, giving in some
case an excessive deference to the legislature on the expense of the constitutionally protected
1
Pierre Elliott Trudeau, Memoirs, (Toronto: McClelland & Stewart, 1993), at 322.
2
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 [Charter].
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rights. A troubling case marked this approach in Newfoundland (Treasury Board) v. NAPE 3
decision, where the SCC upheld a law cancelling a $24 million debt owed to female workers as
pay equity, since the province was facing an economic crisis. Thus, the question becomes
whether or not the SCC is stating that if there is an economic dimension to rights, especially in
terms of economic crises, that should take precedent and Charter rights must be casted aside?
This outcome constitutes in itself a dagger to the heart of the Charter forcing equality rights to
yield in the face of economic interests advanced by the government. Another disturbing decision
emerged in the history of the Charter drafted by no other than McLachlin C.J. who believed that
when individual interests are balanced against public interests, “accommodation of minority
interests are a central part of [Canada’s] history”. She asserted that “[r]ecognition of special
group interests is bred in our soul. It is the stuff that founded us and the means by which we have
managed to stay together. It is not American, to be sure. It is Canadian, and for Canada, it has
thus far worked4
”. Yet we see her in the Alberta v Hutterian Brethren of Wilson Colony5
giving
paramountcy to the security objectives of the government of Alberta in terms of identity fraud,
and refusing to engage in any of the reasonable accommodation that the Hutterites were seeking
in place of having a photograph on their driver’s licence! Her decision was a direct dagger to the
heart of the Charter favouring the interest of the government against the interests of a religious
minority and depriving them from any reasonable accommodation.
Hence, the subject we are going to discuss in our paper is, given the interpretation of the SCC in
those past 3 decades, whether or not s.1 is becoming a dagger to the heart of the Charter or can it
be retrieved to become its soul mirroring the desire of the Canadian men and women and the
3
[2004] S.C.J. No. 61, [2004] 3 S.C.R. 381 (S.C.C.) [NAPE].
4
The Hon. Beverly McLachlin, “The Canadian Charter of Rights and Freedoms' First 30 Years: A Good
Beginning”, in Mendes & Beaulac, eds., The Canadian Charter of Rights and Freedoms, 5th ed.
(LexisNexis/Butterworths, 2014), at p. 33 [McLachlin].
5
[2009] S.C.J. No. 37, [2009] 2 S.C.R. 567, at para. 59 (S.C.C.) [Hutterian Brethren].
5. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
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question becomes: had the most recent decisions, in particular, Bedford, Carter and Quebec v A,
leave a room for optimism that perhaps the judiciary is actually turning towards looking at s.1 as
the soul of the Charter as opposed to the potential dagger at its heart?
We will begin our analysis by discussing the history of s.1, its interpretation through the Oakes
decision, then its interpretation through the Bedford, Carter and Quebec v A, to later discuss the
inconsistencies emerging from applying s.1 in the evidentiary area and the advice we should give
to legal practitioners.
THE HISTORY OF S.1
The history of s.1 informs us about the dangers and the opportunities of having such provision
embedded in the Charter. We start our analysis with the following question: is the Canadian
Charter any different from other Bills or Charter of rights around the world by the mere fact that
it starts with s.1? The choice to bring in an explicit section curbing constitutional rights is most
commonly marked as the negative reaction to the absence of such clause in the American Bill of
Rights6
, although Peter Hogg has pointed out that the wordings of s.1 was positively influenced
by similar clauses in international human rights instruments especially the European Convention
on Human Rights and the International Covenant on Civil and Political Rights7
. While it is true
that “[t]he United States Constitution casts rights in absolute terms, making no mention of the
need to balance them against the collective interest8
”, the US Supreme court had introduced the
so-called “balancing test” within the concept of the First Amendment. Although the First
Amendment stipulates that Congress shall make no law abridging the freedom of speech, press
or assembly, it was ascertained, according the American courts, that those freedoms themselves
6
Mendes Errol, “The Crucible of the Charter: Judicial Principles v. Judicial deference in the context of s.1” (2005),
27 SCLR. (2d) 47 at 50-52.
7
Peter Hogg, Constitutional Law of Canada,(Carswell Student Edition, (2015) Thomson/Carswell) p. 38-2
8
Mc Lauchlin, supra note 4 at p.35.
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are related to the power of constitutional government to survive9
. Thus, the government is
empowered to pass legislation if they can present a clear and present danger to allowing
untrimmed freedom of speech, as stated by the U.S Supreme court in Whitney v. California
decision10
. That being said, the absence of an equivalent to s.1 in the US Bill of Rights and in
particular in the First Amendment, has allowed the courts in the US to engage in the “balancing
test” to balance competing interests. In Canada, the fear that there would be no ability to enact
general welfare legislation was mistaken. Nevertheless the provinces did include s.1 in our
Charter of rights. The Victoria Charter was the first version containing the initial wording of
s.111
. The main problem with this version is the use of broad expressions such as the world
“moral” which presents a great danger for minority rights: if the majority has morals, the
minority rights will be extinguished because the morals of the majority should trump them. With
the new version of s.1 that danger had been eliminated. Adding to that, the expression “public
safety” is dangerously wide that it could encompass a myriad of issues that transcend the
boundaries of the concept of safety.
After various raised concerns that this wording was too broad and permissive, the language was
revised to the text that we know today. The question now is how did the courts interpret s.1 of
the Charter? Are the courts moving into an excessive deference to the legislature or are they
leaning towards a perpetual promotion of this presumed “soul” of the Charter?
UNDERSTANDING S.1: R V OAKES:
The landmark decision on s.1 which almost developed a sort of “holy writ” interpretation was R
9
Assn v. Douds, 339 U.S. 382 (1950).
10
Mr. Justice Brandeis, concurring in Whitney v. California, 274 U. S. 357, 274 U. S. 377 (1927): (“the necessity
which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear
and imminent danger of some substantive evil which the State [or Congress] constitutionally may seek to
prevent...”).
11
"Canadian Constitutional Charter 1971" (Constitutional Conference, Victoria, British Columbia, June 14, 1971)
Appendix B, online: Intergovernmental Affairs www.pco-bcp.gc.ca/.
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v Oakes12
”. Essentially what the Oakes decision did was take the general wording of s.1
“reasonable limits demonstrably justified in a free democratic society” and broke it down into
component parts which were laid down in this landmark decision written by Dickson C.J.
According to this “holy writ”, adjudication under the s.1 of the Charter involves a two-step
process. The 1st
step requires an individual or a group making a claim, to convince the court that
a Charter right or freedom has been breached by a “limit prescribed by law”. If no breach is
proven, the impugned law is upheld as constitutional. If an infringement is established, the 2nd
stage comes into play where the government must demonstrate that it is reasonable and justified
under s.1 of the Charter. Dickson C.J. in its decision provides the framework within which this
demonstration occurs. Comprising four elements, the 2nd
stage requires the government to prove
that: (1) the objective of the impugned law is pressing and substantial; (2) a rational connection
exists between the objective and legislative measures; (3) the right or freedom is minimally
impaired by the legislative measures; and (4) the salutary effects of the legislative measures
outweigh their deleterious ones or the so-called proportionate effect. If the government fails to
meet the requirements of any of the four elements, the law is found to be unconstitutional13
.
Although the structure of the s.1 analysis is now a fixed feature in all Charter litigations, the
intensity with which the Oakes test is implemented is not homogenous. It varies since the
judiciary has discretionary powers about how high or how low to set the bar. If the bar is set high
by the court, the government is faced with a greater challenge demonstrating that a breach is
reasonable, which respect in our opinion the soul of the Charter because as Dickson C.J. pointed
out: “the Charter represents an anchor in the storm of social evolution; it ensures that those
values, unique to Canada as a nation and fundamental to Canada's orderly, democratic society,
12
R v Oakes, [1986] 1 SCR 103, [1986] SCJ No 7 [Oakes].
13
Oakes, supra note 12 at para 69-70.
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are immutable and shielded from encroachment by majority will. The goals sought to be
achieved include: democracy, social justice, freedom, equality and human dignity14
”. If the bar
is set low by the court, it is less challenging for the government to meet the requirements of the
s.1 analysis, which in our view constitutes the dagger to the heart of the Charter because as
Dickson C.J. clearly says: “[t]he protection of the rights of individuals and groups is given
profound and articulate expression in the Charter of Rights and Freedoms15
” and he continues by
saying that the provisions in the Charter “manifest a distinctly Canadian social experience which
combines shared adherence to the protection of political, legal, egalitarian and social rights16
”.
As we will see, this discretionary power of the judiciary has its origins in the implementation by
the Supreme Court of the civil standard of proof of a balance of probabilities for Charter cases.
The government must prove that a breach is probably more reasonable than unreasonable. The
degree of probability in each case is reliant on its unique set of facts. In the Oaks decision,
Dickson C.J. seems to set the bar high, where he made it clear that “[w]here evidence is required
in order to prove the constituent elements of a s.1 inquiry, and this will generally be the case, it
should be cogent and persuasive and make clear to the Court the consequences of imposing or
not imposing the limit17
”. The Oakes test had, with the passage of time, become almost
tantamount with s.1 itself. It is implemented in all cases in which the Court’s decision looks into
the reasonableness of a rights breach. Although the general framework has remained the same,
internal changes have occurred. Each of the four elements had been altered by the SCC in
reaction to its growing perception that government decisions and actions are not always
embedded in cogent evidence that can endure the rigors of stringent judicial review. The
14
Dickson Brian, “The Canadian Charter of Rights and Freedoms: Context and Evolution” in Mendes & Beaulac,
eds., The Canadian Charter of Rights and Freedoms, 5th
ed. (LexisNexis/Butterworths, 2014), p. 17
15
Ibid.
16
Ibid at p.18.
17
Oakes, supra note 12 at para 68.
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question now is; how did the latest decisions implement s.1? Did they move to excessive
deference to the legislature in Charter litigations forming a “dagger” to the heart of the Charter?
BEDFORD, CARTER, QUEBEC V AG: THE SOUL OR THE DAGGER?
Canada v Bedford18
:
The interesting part of the decision is that the main issues that were raised in terms of s.7 are
very similar to those relevant to s.1: arbitrariness, overbreadth and gross disproportionality that
have to a large extent developed only in the last 20 years. The curious part in that case is that
even the Attorney General decided that they were not going to argue s.1. Furthermore, if we
looked at the Court’s analysis of s.1, it is almost mirroring their analysis of s.7. We could argue
that there is almost a merger of s.1 and s.7 in this case. However the court tries to deny this in
para 124 and following of the decision, and they try to distinguish s.7 from s.1. In para125 the
court states that:
“s.7 and s.1 ask different questions. The question under s.7 is whether the law’s negative
effect on life, liberty, or security of the person is in accordance with the principles of
fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross
disproportionality, the specific questions are whether the law’s purpose, taken at face
value, is connected to its effects and whether the negative effect is grossly
disproportionate to the law’s purpose [in our opinion that’s all the s.1
language]. Under s.1, the question is different — whether the negative impact of a law
on the rights of individuals is proportionate to the pressing and substantial goal of the law
in furthering the public interest [we don’t understand that analysis, and in our view the
SCC is desperately trying to establish a distinction between s.1 and s.7]. The question of
justification on the basis of an overarching public goal is at the heart of s.1, but it plays
no part in the s.7 analysis, which is concerned with the narrower question of whether the
impugned law infringes individual rights.”
The court says that s.7 is mainly focusing on the individual’s right, but in s.1 the main focus is on
the balance between the individual’s right and the public interest. Instead, the court focuses on
the individual in the s.1 analysis by arguing that the claimants cannot have the safe working
18
2013 SCC 72, [2013] 3 SCR 1101 [Bedford].
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environment because they are prohibited to work in a bawdy-house, or to hire bodyguards who
can protect them in a non-exploitive situation. Therefore, para.125 constitutes a desperate
attempt to find differences between s.1 and s.7 in the analytical aspects. Although s.1 is not
supposed to focus on the rights of the individual as such but rather to focus on the rights of the
individual vs. the public interest, but that’s not how the courts proceed. In Carter, as we will see,
the SCC actually goes further, and they actually decide that the whole issue related to the
question raised by Cromwell J., which demolished the Attorney General’s argument regarding
s.1, was based on the impact of the impugned provision on the individual’s right.
What does Bedford do: is it the soul or the dagger to the heart of the Charter?
The SCC in Bedford, while trying desperately to establish a distinction between s.1 and s.7, in
fact they are not doing anything regarding s.1 because they are not putting it into use. In this
decision the SCC is basically saying, that the court has to deal with s.1. So we can ask is the SCC
moving towards deference or away from it?
Going back to Hutterian Brethren case, the SCC was discussing s.1 and focusing entirely on
governmental goal, the security objective, thus in our view the majority had deferred to the
government completely. In Bedford the SCC did not defer as much, so the decision in that
manner could not constitute a dagger to the heart of the Charter. We can clearly see the SCC is
starting to switch away from Hutterian Brethren as they are moving away from the mechanical
approach to s.1 by delving deeper into s.7 and analyzing its substance to input that into s.1.
Thus, is that going to be a recurrent pattern? Is this going to be something that we are going to
see again and again as we are going through different rights in the Charter?
Carter v Canada19
The main provision that was attacked in this ruling was s.241 (b) of the Criminal Code, the
19
2015 SCC 5, [2015] 1 SCR 331 [Carter].
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aiding and abetting in committing suicide provision. In Carter, the trial judge chose to focus on a
narrow range of individuals, competent adults suffering with irremediable medical conditions.
Smith J. came out with the view that based on this narrow focus on only certain group of people,
the impugned provisions were a violation of their s.7 rights that is not justified under s.1 of the
Charter. The SCC agreed with the trial court and they focused on this very narrow group of
people: competent adult person who (1) clearly consents to the termination of life and (2) has a
grievous and irremediable medical condition (including an illness, disease or disability) that
causes enduring suffering that is intolerable to the individual in the circumstances of his or her
condition20
. In the hearing, as reported by professor Mendes21
, Cromwell J. asked a question
which goes to the heart of the whole controversy and which had watered down the Attorney
General’s position, the question was: “are the individuals who because they know they are going
to have an intolerable suffering at a certain point, that they may be forced, because of the
opposition, to take their lives earlier than normal?” The silence reigned in the courtroom, and
then the Attorney General basically gave up, and said “yes, there will be situations where people
will be forced to take their life prematurely”. At that point everyone knew what the court was
going to decide. Having held that impugned provision is in violation of s.7, the SCC turned to s.1
of the Charter as we see from para.94 to 123. In this analysis s.1 is almost reiterating what the
court said on s.7, but they just take in the mechanical tools: “[a]n absolute prohibition on
physician-assisted dying is rationally connected to the goal of protecting the vulnerable from
taking their life in time of weakness”, is the same as saying “individual rights are not limited
arbitrarily”. Is it necessary to achieve the government’s objective? The SCC answered in the
affirmative “it is clearly rational to conclude that a law that bars all persons from accessing
20
Ibid at para 4.
21
Errol Mendes, CML3365 Civil Liberties, (Faculty of Law, University of Ottawa, 16 February 2016) [CML3365].
12. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
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assistance in suicide will protect the vulnerable from being induced to commit suicide at a time
of weakness. The means here are logically connected with the objective22
”. Is the absolute
prohibition minimally impairing? The SCC found that a total ban on physician-assisted death
does not minimally impair the right to life, liberty and security of the person23
since a less
restrictive regime could achieve the objective of the prohibition. Specifically, vulnerable
Canadians could be protected while allowing a subset of Canadians to access physician-assisted
death, as shown by the trial judge. When the SCC reached the stage of the deleterious effects and
salutary benefits of the impugned provisions, looking at this line in paragraph 122 “[g]iven our
conclusion that the law is not minimally impairing, it is not necessary to go on to this step”,” it is
like the SCC is telling us to forget about the effects doctrine. It should also not be forgotten
that in the Hutterian Brethren’s decision, the Chief Justice was not only focusing on minimal
impairment, but she had put a lot of focus into the effects test. In Carter the court is basically
suggesting that minimal impairment test is enough to conclude that the law could not be saved
under s.1, and giving this conclusion it is not necessary to weigh the impact of the law and
protected rights.
Is the Carter’s decision a soul or a dagger to the heart of the Charter?
It is in between, we can’t really tell, because the SCC had adopted the same approach used in the
Bedford analysis: the decision is trying to infuse s.1 with s.7 bigger values, but are they
succeeding? We cannot be sure. At least this decision is very different from Hutterian Brethren
where McLachlin C.J. was mainly focusing the government’s objective which led to an
excessive deference to the legislature.
22
Carter, supra note 19 at para 101.
23
Ibid at para 121.
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Quebec v A24
The most significant facts of this case is that “A wanted to get married, but B told her that he
did not believe in the institution of marriage and that he might consider getting married
after living with her for 25 years25
”. It has to do with the objective of the Quebec legislature in
promoting and preserving choice and autonomy, combined with the reality that it is not a rare
case at all. The appeal in front of the SCC relate solely to A’s constitutional arguments that 401
to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec26
violate the right to equality
entrenched in s. 15 of the Charter by excluding de facto spouses from the legal protections for
both support and property given to spouses in formal unions. What it is interesting in this
decision that male judges, Lebel, Fish, Rothstein and Moldaver J.J, held that the excluding de
facto spouse from the scope of the impugned provision did not infringe the constitutional
equality guarantee. By reaching this conclusion, the male judges did not bother to go into a s.1
analysis. What is astonishing about their findings, is that in their decision the judges did not take
note of an important fact, that “A” wanted to get married but “B” refused. Thus, one can ask how
much choice was involved in this case particularly given the fact that there was a financial
dependency that took hold in the parties’ relationship until they had separated.
But how did Abella J. decide?
Essentially she maintained that in reality there is no difference in terms of married and de facto
spouses: one of them ultimately has major disadvantages if the marriage or the relationship ends.
The interesting part in Abella J. ruling is how she puts her findings in the s.15 analysis. She went
on analysing the Kapp and Withler decisions, in the two steps process that they laid out; (1) does
the law create a distinction based on an enumerated or analogous ground; (2) Does the
24
2013 SCC 5, [2013] 1 SCR. 61[Lola]
25
Ibid at para 5.
26
Civil Code of Québec, SQ 1991, C 64.
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distinction create a disadvantage by perpetuating prejudice or stereotyping. Then she goes to
show that there is no need to prove prejudice and stereotyping, they are not really discrete
(distinct) elements of the test which a claimant is obliged to demonstrate. According to Abella J.
the courts “must be careful not to treat R v Kapp27
and Withler v Canada28
as establishing an
additional requirement on s.15 claimants to prove that a distinction will perpetuate prejudicial or
stereotypical attitudes towards them29
”.And she adds, “[s]uch an approach improperly focuses
attention on whether a discriminatory attitude exists, not a discriminatory impact30
”. Therefore, it
might be relevant in some cases to prove prejudice, and in others to prove stereotype, however
she basically states not to take the huge prior precedents of Kapp and Withler as establishing a
requirement to prove prejudice or stereotype, because that “imposes a largely irrelevant, not to
mention ineffable burden31
” on the claimants. . Therefore Abella J. is really pushing out s.15
quite a lot in terms of lowering the number for criteria which applicants have to fulfill: she
comes up with a much simpler test for s.15: all a claimant has to prove is the distinction has
the effect of perpetuating arbitrary disadvantage on the him or her on the basis of an
enumerated or analogous group. “If the state conduct widens the gap between the historically
disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory32
”.
It is surprising that many people haven’t figured that out, because it really creates a much
simpler test for s.15 than any of the prior decisions. It should be noted that Abella J. got a
majority on her s.15 analysis. Abella J. then concludes by saying “[h]aving accepted marital
status as an analogous ground, it is contradictory to find not only that de facto spouses do have a
27
2008 SCC 41, [2008] 2 SCR 483.
28
2011 SCC 12, [2011] 1 SCR 396.
29
Lola, supra note 24 at para 327.
30
Ibid.
31
Lola, supra note 24 at para 330.
32
Ibid at para 332.
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13
choice about their marital status, but that it is that very choice that excludes them from the
protection of s. 15(1)33
”.
McLaclhin C.J. is not following Abella J. even though she agrees with her, so what is she doing
here? She is actually going back to the Law’s decision34
in all of these conditions being attached
to s.1535
. The reason why her analysis is important is that she puts all these conditions into the
context of s.1. Law basically established about 6 different factors that applicants would have to
prove to get a s.15 decision. It imposes a much more advanced s.1 into the guts of s.15. So how
did McLachlin C.J. treat s.1?
She starts applying a very mechanical approach to s.1 borrowing some of the criteria from Law.
She found the impugned provisions in the Quebec Civil Code could be justified under s.1.
According to her analysis, the objective of the Quebec legislature, which is to promote choice
and autonomy for all Quebec spouses, is sufficiently important to justify an infringement to the
equality right of common law spouses36
. The distinction made by the law is rationally connected
to the state objective: the Quebec legislature imposes state-mandated obligations on couples who
have a conscious and active choice to accept those obligations37
. It impairs the equality right of
the de facto spouses to a lesser degree than other approaches– then we see an echo of Hutterian
Brethren when she says: “[t]he question at the minimum impairment stage is whether the limit
imposed by the law goes too far in relation to the goal the legislature seeks to achieve. “Less
33
Ibid at para 335.
34
Law v Canada (Minister of Employment and Immigration), [1999] SCJ No 12, [1999] 1 SCR 497 [Law].
35
Ibid. according to the Law decision, in order to establish a violation of s.15 a claimant must satisfy a three-part
test: (1)differential treatment (need a comparator group) (2)on the basis of an enumerated or analogous ground, and
(3) the law has a purpose or effect that is discriminatory - consider the following: 1-does the law draw a distinction:
(a)between the claimant and other on the basis of stereotypical personal characteristics, or; (b)fail to take into
account the claimant's disadvantaged position? 2-is this differential treatment based on an enumerated or analogous
ground? 3-does this discriminate by imposing a burden or withholding a benefit?
36
Lola, supra note 24 at paras 435-437.
37
Ibid at para 438.
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14
drastic means which do not actually achieve the government’s objective are not considered at
this stage”: Hutterian Brethren, at para. 5438
”. She concluded that the “the effects of the Quebec
scheme on the equality rights of de facto spouses are proportionate to the scheme’s overall
benefits for the group39
”. Therefore, according to McLachlin C.J. it is really up to the Quebec
legislators to make the appreciation on difficult social issues and they made their choice which is
a legitimate way for them to achieve a legislative goal and the goal should not be altered. This
was her same reasoning in Hutterian Brethren; in the Lola case, the scheme enhances the
freedom of choice and autonomy of many spouses as well as their ability to give personal
meaning to their relationship and it should be maintained by the courts.
Abella J. disagreed with this analysis and refused to adopt a mechanical approach; similar to her
s.15 analysis, she discussed the reality surrounding the de facto spouses in her s.1 analysis, by
stating that during successive family law reforms from 1980 onwards “the exclusion of de
facto spouses from spousal support and property regimes in Quebec was a carefully considered
policy choice40
”. That cannot provide justification against constitutional scrutiny. Contrary to the
position of McLachlin C.J., Abella J. found that the impugned provisions failed the minimum
impairment test and she was of the opinion that courts cannot simply differ to a legislator in the
context of a total exclusion from a legislative scheme41
. In her view, there are other means to
achieve the government’s goal without considering that all de facto spouses are excluded from
the protection offered to the married spouses. Then she comes up with a proposal for a legislative
reform; the ability of de facto spouses to enjoy the freedom of choice and autonomy “can be
38
Ibid at para 442.
39
Ibid at para 449.
40
Ibid at para 363.
41
Ibid at para 361 (“[t]his Court has generally been reluctant to defer to the legislature in the context of total
exclusions from a legislative scheme”).
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15
equally protected under a protective regime with an “opt out mechanism42
”. Thus, she is
analysing the minimal impairment part of s.1 by pointing out to the government that they can
adopt another measure which is less impairing in order to carry out the legislative objective
regarding freedom of choice, and the opt out scheme is an example of that. Next Abella J.
switches to the effects doctrine where she says: “[i]n view of the conclusion that the provisions
are not minimally impairing since other mechanisms for preserving choice are available, it is
unnecessary, strictly speaking, to consider the final step of Oakes43
”. However she concluded
that the deleterious effects of the exclusion exceed far more its salutary effects. Then she looked
at the census figures and expert reports presented to the trial judge where the number of de
facto unions in Quebec is on the rise, “representing 34.6% of all Quebec unions in 2006. These
exclusions thus impact over a third of Quebec couples44
”. Some argue that now 38% of Quebec
couples live in a de facto relationship45
. Therefore, the deleterious effect of excluding all de facto
couples from the protection of the family support and division of property regime is seriously
profound.
What’s really troubling in that decision is that McLachlin C.J. and Abella J. failed to mention the
children. The fact that “A” and “B” had children, profoundly affects the relationship between a
man and a woman and their ability to work and achieve economic parity between them! It had to
be included in this case because ultimately it shows us the impact of the economic parity when
children are involved and none of the ruling judges mentioned that. This is profoundly relevant
to our discussion regarding s.1 because one of the reasons that we intended to get into this
discussion is because here you have two big “stock” in one decision applying s.1 differently; on
42
Ibid at para 372.
43
Ibid at para 377.
44
Ibid.
45
Chambre des notaires, “Living in a Common Law union”, online: < http://uniondefait.ca/en/>.
18. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
16
one hand we have McLachlin C.J. who goes back to the very mechanical approach to s.1 where
she just took the tools and applied them and as a result she came with a completely different
result leading her to side with the male judges and getting the decision ruled against Lola. Then
on the other hand, we have Abella J. going the other way, basically treating this whole s.1
analysis based on the reality facing this particular woman in this particular setting.
Then we have that mid-point of Deschamps, Cromwell and Karaktsanis J.J. who basically
considered that the court may still want to keep the general distinction between matrimonial
regime and de facto spouses, but surely in terms of support – maybe that’s where the kids come
in– it absolutely has to be a common basis between the rest of the provinces and Quebec because
there are children involved. Therefore there has to be an obligation to support. So they came up
at the mid-point stating that the exclusion of the de facto spouses from all the measures adopted
to protected couples in a formal relationship perpetuates the disadvantage de facto spouses have
historically experienced46
.
So does the Lola decision constitute a dagger to the heart of the Charter or its soul?
In this case we have three different approaches to s 1; Chief Justice McLachlin’s analysis
represents the dagger because she applied s.1 mechanically mirroring her analysis in Law and the
Hutterian Brethren, as a result she reached a different outcome than Abella J. with whom she
concurred regarding the s.15 analysis. Consequently, McLachlin C.J. analysis represents a
complete deference to the legislature. Then we have Abella J. whose analysis regarding s.1
respected the soul of the Charter; she tried to include her s.15 analysis in s.1 and went beyond
the mechanical implementation of s.1 by proceeding into an analysis of the facts in relation to the
de facto spouses in Quebec. As a result Abella J. did not defer to the legislature in the context of
a total exclusion of the de facto spouses from the legislative scheme. Finally we have the mid-
46
Ibid at para 385.
19. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
17
point approach of Deschamps, Cromwell and Karakatsanis J.J., who focused on the minimal
impairment test, and addressed the issue of “family unit” which should entitle a de facto spouse
to support. The three judges proposed to Quebec legislators to be guided by the concept of
“mutual obligation” as the non-compensatory basis for the obligation of support in seeking ways
to uphold the freedom of choice and autonomy of the spouses and to interfere as little as
reasonably possible with the right to support itself47
.
Reviewing the SCC decisions in the past 30 years, it’s apparent that they have attached their
findings regarding the standards of review and proof to the context in which the government
acted. The SCC’s use of a civil standard of proof in Charter litigations, as we will see, made the
adoption of a contextual approach, a natural fit. The civil standard, rooted in the circumstances of
individual cases, requires the government to show that an infringement is probably more
reasonable than not. It remains, almost 30 years after deference was integrated in the Oakes test,
difficult to predict when the judiciary will assume a relaxed stance during its s one analysis and
when it will not. The decision about judicial deference marks how the Court uses the Oakes test,
either in its entireness or in its component parts. It affects how high or low the bar will be set,
influencing the degree of stringency with which the reasonableness and justifiability of a Charter
right violation will be assessed. It determines the nature and sufficiency of evidence that the
government must adduce in order to establish that a law is constitutional. This decision is, in
numerous cases, what triggers the success or failure of the government arguments to uphold the
impugned legislation.
ADVICE TO PRACTICING LAWYER IN FACE OF THE REIGN OF
INCONSISTENCY REGARDING THE BURDEN OF EVIDENCE.
In the Oakes decision as aforementioned, Dickson C.J. had set a 2 stage process. Basically he
47
Ibid at para 399.
20. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
18
considers that in the 1st
stage of the process, the individual bringing the claim must prove that a
specific Charter right or freedom has been violated. It is a civil law burden of proof namely
proof by preponderance of probability48
, but “it should be cogent and persuasive49
”. If the
infringement is established, the Court proceeds to its s.1 analysis, and the 2nd
stage of Charter
review is triggered. At this step, the burden of proof shifts to the government (or other party)
seeking to uphold the impugned legislation. It is for the government to convince the court that
the impugned law is a “reasonable limit” and “can be demonstrably justified in a free and
democratic society50
”.
Nevertheless, that’s not the way a lot of the cases implemented the test following the Oakes
decision. In case after case depending on what the issue was, the SCC seemed to adopt a “more
permissive approach to evidence in the Oakes test51
”, so we either had a tough burden being
imposed on the individual or the group, or a very lax one. It has become apparent in many of
those cases, depending on what the subject matter was at stake, that a different approach to the
evidentiary burden was implemented. For example in Irwin Toy Ltd v Quebec (Attorney
General)52
, R v Butler53
and R v Sharpe54
, the SCC’s decision was founded on inconclusive
social science evidence instead of concrete proof in relation to the harm alleged by the
government, asserting that a reasoned apprehension of harm will suffice. In essence, in cases
where vulnerable individuals are involved, the SCC is imposing a much lower burden of proof
on the government and the scientific evidence, while “not strong”, is sufficient for the Court to
48
Oakes, supra note 12 at para 67.
49
Ibid at para 68.
50
Ibid at para 66.
51
Mendes Errol, “Section 1 of the Charter after 30 years: The Soul or the Dagger at its Heart?” in Mendes &
Beaulac, eds., The Canadian Charter of Rights and Freedoms, 5th ed. (LexisNexis/Butterworths, 2014), at p. 297
[Mendes].
52
[1989] SCJ No 36, [1989] 1 SCR 927.
53
[1992] SCJ No. 15, [1992] 1 SCR 452.
54
[2001] SCJ No 3, [2001] 1 SCR 45.
21. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
19
consider a Charter breach justified under s.1.
However, a different approach was adopted by McLachlin J. in RJR-MacDonald55
. Ample social
evidence induced to the trial judge supported that cigarettes harms and often kills those who use
it. Yet, that wasn’t enough to convince McLachlin C.J. She wanted more proof and did not settle
with the standard of “reasoned apprehension of harm”. She required a demonstration where the
court can have a rational inference from the fact that cigarettes are dangerous enough, as a result
the advertisements of cigarettes can be limited.
This inconsistency in approaching the evidentiary standards at the s.1 stage in Charter cases has
placed practicing lawyers in a situation of great uncertainty. As professor Mendes explained
“[s]uch inconsistency does not provide much guidance. Government litigators, who have
the burden of proof under s.1, do not know the quantity or type of evidence that they
must marshal. Further, those seeking to have courts uphold their rights are unable to
properly structure their pleadings in the first stage of Charter judicial review and prepare
the Court for any contest over the evidence provided by the government56
.”
Therefore, the shifting sands of the s.1 evidentiary standard cause a greater concern with regard
to certainty and predictability, particularly for claimants, but also for the government in Charter
litigations.
So how can this inconsistency be resolved in order to give some assurance to legal practitioners
regarding the burden of proof in s.1?
From its birth, the Oakes test was envisioned to be a “stringent standard of justification” to be
used in a generic or equal approach to all Charter violations. However, we have seen that this
“one size fits all” manner has proven to be problematic. As a result Chrisotpher Bredt and Adam
Dodek came up with their own suggestion that “[i]nstead of asserting in each case that Oakes
applies and then contextualizing each application of the test, the Court should begin to construct
55
RJR-Macdonald Inc. v Canada, [1995] SCJ No 68, [1995] 3 SCR 199 [RJR-MacDonald].
56
Mendes, supra note 51 at p. 299.
22. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
20
rights-specific s.1 tests to suit the context of various rights in the Charter 57
”. According to this
analysis, the Court should abandon the notion that s.1 could be applied uniformly to all
Charter rights and they should start rethinking how to adopt the evidentiary burden
focusing on the rights in question. Bredt urged that “[t]he time has come for the Court to
consider an approach to s.1 that may vary depending on the nature of the right at issue. Such a
rights-specific approach will assist the Court in rationalizing the distinctions it has already made
in its s.1 jurisprudence, and provide greater predictability to Charter litigants going forward58
”.
This new approach to s.1 was advocated by Brian Slattery who criticized the mechanical tests
taken by the courts in applying s.1. He indicates that what s.1 fails to determine is how does the
standard of “reasonable limits” interact with the “rights and freedoms” guaranteed in the
Charter?
He describes two possible approaches; the first presumes that s.1 sets up a uniform standard that
is “external” to the specific charter right and is engaged only when a violation of this right has
been established. Slattery calls it the “monistic approach”59
. This approach “envisages a single
standard applicable to the full range of Charter infringements”. The Second approach according
to Slattery presumes that s.1 requires a variety of standards for evaluating limits on Charter
rights and freedoms. These standards are adapted to the specific rights in question and are
considered to be part of their definitions. “In this sense they are “internal” to the substantive
guarantees”. Using these standards is part of the process of establishing whether or not a Charter
breach had occurred. The standards mirror all the basic requirements prescribed in s.1, but they
57
Christopher D. Bredt and Adam M. Dodek, “The Increasing Irrelevance of s 1 of the Charter” (2001) 14 SCLR
(2d) 176 at 187.
58
Bredt, “The Right to Equality and Oakes: Time for Change” (2009) 27 NJCL 59, at 62.
59
Brian Slattery, “The Pluralism of the Charter: Revisiting the Oakes Test” in Luc B. Tremblay & Grégoire C.N.
Webber, eds., La limitation des droits de la Charte : essais critiques sur l'arrêt R. c. Oakes [The limitation of charter
rights: critical essays on R. v. Oakes] (Thémis: Montreal, 2009), at 13 [Slattery].
23. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
21
are connected with specific criteria applicable to the particular rights in question. Slattery calls it
the pluralistic approach, because “it envisages a range of differing standards for judging limits
on Charter rights60
”.
Slattery points out that the main difference between the two approaches “does not lie in the
number of analytical stages or the location of the burden of proof. Rather it lies in the character
of the justificatory test”. He explains that “[u]nder the monistic approach, the court applies a
uniform standard that does not reflect the specific Charter right or subject matter under
consideration61
”. We have seen many decisions adopting this approach, where the courts had
kept the right in question and s.1 analytically distinct, applying the Oakes test mechanically, i.e.
RJR-MacDonald, Hutterian Brethrens, and McLachlin’s decision in the Lola case. However,
“under the pluralistic approach, the constitutional test is part and parcel of each particular
Charter guarantee and employs detailed criteria that reflect its distinctive nature, purposes, and
genesis, as well as the specific subject matter at issue62
”.
As shown in the Bedford and Carter decisions and before them the landmark decision re Motor
Vehicle Act63
, the pluralistic approach has become an integral part of the Court’s interpretative
strategy in s.7. This section contains rights that are defined in terms that import standards of
reasonableness. In interpreting s.7, Lamer J. in re Motor Vehicle Act, established that the phrase
“principles of fundamental justice” does not imply a protected right as such. Rather it functions
as a “qualifier of the right not to be deprived of life, liberty and security of the person64
”. And
according to Lamer J. “the phrase serves to establish the parameters of [those rights] but it
60
Ibid at p. 14.
61
Ibid at p. 19.
62
Ibid at p. 20.
63
Reference re Motor Vehicle Act (British Columbia) S. 94(2), [1985] SCJ No. 73, [1985] 2 SCR 486 [re Motor
Vehicle Act]
64
Ibid at 24 and 62.
24. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
22
cannot be interpreted so narrowly as to frustrate or stultify them65
”. Slattery adds that “[i]t lays
down a constitutional standard governing the legitimacy of actions that deprive individuals of the
right to life, liberty and security of the person66
”. In his words, “the standard is internal to s.7 and
forms part of the effective definition of the right guaranteed. As we will see, it also overlaps
appreciably with the standard of “reasonable limits” in s.167
”. In the Motor Vehicle Reference,
Wilson J. clearly indicated that once a law breaches the principles of fundamental justice under s.7, there
is little work left for s.168
. This shows us that the pluralistic understanding of the Charter rights
was previously adopted by the SCC and is not in itself a modern approach.
We concur with Brian Slattery analysis that the courts should abandon the monistic approach in
favour of a pluralistic approach, which is in other words the same position adopted by Bredt and
Dodek. According to Slattery the pluralistic approach promotes the development of
reasonable limits that are consistent with the needs of specific Charter rights and reveal
their characteristic, precedents, and underlying objective. In effect, pluralism urges courts to
determine general legal principles governing the extent of each particular Charter right. These
principles go beyond a single case reviewed by the court to “provide guidance in future
cases, contributing to the formation of a complex body of constitutional common law that
gives flesh to the bare bones of the Charter guarantees69
”. According to professor Mendes70
, if
Slattery’s pluralistic approach is applied by the courts “before any of the mechanical tools in
65
Ibid at para 25.
66
Slattery, supra note 59 at p. 31.
67
Ibid.
68
re Motor Vehicle Act, supra note 63 at para 105 : (If, however, the limit on the s. 7 right has been effected through
a violation of the principles of fundamental justice, the enquiry, in my view, ends there and the limit cannot be
sustained under s. 1 . I say this because I do not believe that a limit on the s. 7 right which has been imposed in
violation of the principles of fundamental justice can be either "reasonable" or "demonstrably justified in a free and
democratic society". The requirement in s. 7 that the principles of fundamental justice be observed seems to me to
restrict the legislature's power to impose limits on the s. 7 right under s. 1 . It can only limit the s. 7 right if it does so
in accordance with the principles of fundamental justice and, even if it meets that test, it still has to meet the tests
in s. 1 .)
69
Slattery, supra note 59 at p.34.
70
Mendes, supra note 51 at p.331
25. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
23
Oakes is even argued”, it would require both, the party alleging the Charter breach and the party
upholding it, to discuss during the 1st
phase of the Charter litigation, “how the specific right in
question embeds its historical and common law or statutory origins in such a way that its proper
application to the fact situation concerning the alleged infringement either overlaps or overrides
the various parts of the Oakes test”. In some cases according to Mendes, especially those dealing
with s.7 and s.15, if the pluralistic approach is applied, “courts may decide that s.1 plays little
or no role in the outcome.”
Another advice emerged, far away from the monistic/pluralistic approach. Professor Mendes71
conveyed to us a valid advice from many practicing lawyers. Their basic view is that
practitioners have to look at “who” the judges are, what the judges are likely to do, or say.
Therefore, if it is a freedom of expression case, lawyers are probably going to have a tough time
in front of McLauchlin C.J. due to the heavy evidentiary burden she imposed while dealing with
s.1 in RJR-MacDonald. So according to professor Mendes, most of the practicing lawyers are of
the opinion that given the uncertainty that some of these cases have yielded, lawyers should
know who their judges are and depending on what the issues are, they should do a much
better and proper job on the evidentiary burden if it is a Charter right the judges care
about. If it deals with a vulnerable group for ex maybe lawyers don’t have to be so worried
because the cases like Butler, Irwin Toy and others have put a very low threshold on the
evidentiary burden.
Conclusion:
We entered an era of inconstancy where different approaches towards s.1 may be detected in a
single decision as in the Lola case, and each of these approaches led to a different outcome. So
how certain are we regarding the future of s.1? Not that much. It is evident that through those 30
71
CML3365, supra note 21.
26. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
24
years, the SCC has taken in many cases a mechanical approach towards s.1, that they lost track
of its framework set up by Dickson C.J. in the Oakes decision. He clearly stated that all
reasonable limits must be interpreted in the context of a “free and democratic society”; it is
according to the Chief Justice, the very basis of any justification for any limits imposed on
Charter rights. It is the purpose for which the Charter was crafted in the first place. The Chief
Justice clearly describes those values that come under a free and democratic society as “the
inherent dignity of the human person, commitment to social justice and equality, accommodation
of a wide variety of beliefs, respect for cultural and group identity, and faith in social and
political institutions which enhance the participation of individuals and groups in society72
”.
Thus, the soul of the Charter requires the courts to interpret s.1 in light of all these values
steering away from the mechanical approach in applying that section. Thankfully we are starting
to see a shift towards a more pluralistic approach in Bedford and Carter who focused mainly on
strengthening s.7 to restrain the actions of the government. However, the completely forgotten
part of Dickson C.J. rational in applying s.1 since the 1980s, remains in his following statement:
“[t]he underlying values and principles of a free and democratic society are the genesis of the
rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on
a right or freedom must be shown, despite its effect, to be reasonable and demonstrably
justified73
”.
In our opinion, s.1 has been rooted in the Canadian Charter to preserve the rights and freedoms
of Canadians. In it we read the expression of a “free and democratic society” which truly mirrors
the essence and soul of this section nonetheless correspondingly the essence and the soul of the
Charter. Shifting from the notion of a “free and democratic society” in limiting Charter rights
72
Oakes, supra note 12 at para. 64.
73
Ibid.
27. Section 1 of the Charter between the soul and the dagger: where are we now? N7446267
25
and freedoms is perilous to those rights and freedoms. Thus s.1 would be transformed to a
weapon that could be used to terminate the rights and freedoms of Canadians, instead of
safeguarding them. This could lead to a state where discrimination, apartheid, police laws
become the norm, and the right to free speech, freedom of religion, freedom of association,
aboriginal rights as well as the right to liberty and security, becoming the exception. Applying
s.1 while disregarding its essence, its soul, is equivalent to a dagger right at its heart and that of
the Charter. Separate the soul from the body and the body is rendered lifeless. Such is separating
the soul from the Charter, equivalent to killing every right and freedom entrenched within. We
need to go back to the Charter in its foundation, back to the reasons why it had been drafted to
begin with, back to the motive as to why so many individuals, advocacy groups, First Nations
invested such energy and efforts in order to craft a document which paints the Canada they had
always aspired for.
