Supreme Court of Canada

Constitutional Roundtable on City of Toronto et al v Ontario

Posted on by Tal Schreier

by: Bailey Fox

On Tuesday November 9, 2021 the Asper Centre hosted a constitutional roundtable panel on the Supreme Court’s recent decision in City of Toronto et al v Ontario, 2021 SCC 34. The Asper Centre intervened in the appeal at both the Ontario Court of Appeal (OCA) and the Supreme Court of Canada (SCC). The panelists for the constitutional roundtable included lawyers and academics who had participated in the appeal: Geetha Philipupillai, lawyer at Goldblatt Partners LLP and counsel for the intervener Canadian Civil Liberties Association in the SCC appeal; Professor Lorraine Weinrib, Professor Emerita at the University of Toronto Faculty of Law and a specialist in constitutional law and litigation; and Alexi Wood, of St. Lawrence Barristers LLP, counsel for the Asper Centre in its intervention at the OCA and the SCC. The panel was moderated by Lillianne Cadieux-Shaw, of St. Lawrence Barristers LLP, co-counsel for the Asper Centre in its intervention at the SCC.

Lillianne Cadieux-Shaw began the discussion with a summary of the facts and issues in the case. In short, the Supreme Court considered whether the Better Local Government Act, SO 2018, c 11 (the Act) – enacted by Ontario’s provincial government during the City of Toronto’s municipal election – which cut the number of city wards violated freedom of expression. The Court also discussed the role of unwritten constitutional principles in constitutional interpretation. In a 5-4 split decision, the SCC held that the Act did not violate candidates’ freedom of expression. A fuller discussion of the case be found on the Asper Centre’s blog here.

The panelists discussed the many important ramifications of the case for constitutional interpretation and litigation. Professor Weinrib noted that the case may revolutionize the freedom of expression guarantee because the Court de-emphasized the purposive approach to Charter interpretation. Instead, the Court underscored the Baier framework and its more technical positive/negative rights analysis. Alexi Wood noted that it would likely be more difficult to prove a breach of s2.(b) going forward, noting that in the context of preparing for freedom of expression litigation, lawyers will have to carefully frame the claim based on a positive/negative rights distinction. Geetha Philipupillai added the insight that this may lead to more claims based on the Charter’s s.15 guarantee of equality or s.2(d) right to freedom of association given that the current legal test for breach of these provisions does not distinguish between positive and negative claims.

A recurring thread throughout the Roundtable was a comparison between the majority and dissent in the decision. The dissenting opinion, penned by Justice Abella, would have applied the framework for proving a breach of s.2(b) from Irwin Toy v Quebec, [1989] 1 SCR 927 and found that the Act violated freedom of expression. As Professor Weinrib noted, the strong dissent also highlighted the radical change in the majority’s approach to the scope of s.2(b). Professor Weinrib was referring to a broader recent shift in the Courts jurisprudence that narrows the scope of Charter guarantees, based on the SCC’s concern that the existing legal tests are too broad and the test for justifying a breach under s.1 too difficult for governments to meet. During the discussion on the role of evidence in the case, Alexi Wood noted that the Majority’s choice to advance the positive/negative rights framework was facilitated by the majority’s move away from the facts of the case. Conversely, the dissenting opinion was much more fact-specific, partially because the Irwin Toy framework requires an analysis of the facts. In comparing the two sets of reasons throughout the discussion, the Panelists usefully highlighted the extent of the ideological cleavage on the Court as well as the implications of the majority’s departure from the Irwin Toy test.

The Panel also touched on the role unwritten constitutional principles and the place of municipalities in Canada’s constitutional framework. Overall, the discussion between scholars and practitioners, all involved in the case, highlighted some important implications about the case from both an academic and practical perspective. It both put the decision in broader context while helping attendees understand the implications of the case for both freedom of expression specifically and constitutional litigation more broadly going forward.

View the webcast of this Constitutional Roundtable HERE.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law. 

News Statement: Toronto (City) v Ontario (Attorney General)

Posted on by Tal Schreier

In a deeply divided 5 to 4 decision released today, the Supreme Court of Canada upheld the Better Local Government Act, 2018 as constitutional. This legislation was enacted by the newly elected Ford government in 2018, midway through an ongoing municipal election. The legislation reduced the number of wards of Toronto City Council from 47 wards to 25 wards.

A number of individuals, including candidates in the 47-ward election, challenged the legislation, as did the City of Toronto. It was argued that cancelling a democratic election more than halfway through the election period breached the Charter’s guarantee of freedom of expression, without justification. The challenge was successful at Divisional Court but failed at the Court of Appeal. The individual litigants dropped out of the litigation at this point and the City of Toronto appealed to the SCC.

The David Asper Centre for Constitutional Rights, represented by Alexi Wood of St. Lawrence Barristers LLP, intervened on the issue of freedom of expression under s. 2(b) of the Charter.

The Asper Centre is disappointed in the majority ruling in the SCC. According to Alexi Wood, “The majority decision fails to recognize the importance of electoral expression and has the potential to destabilize other types of expression in the future.”

The Asper Centre prefers the analysis set out in Justice Abella’s dissent, which held that the Act unconstitutionally interfered with the political dialogue between candidates and voters. The legislation was an unprecedented intervention midway through the election period, “destabilizing the foundations of the electoral process and interfering with the ability of candidates and voters to engage in meaningful political discourse during the period leading up to voting day,” according to the dissenting opinion. Justice Abella, quoting from the Asper Centre’s legal arguments, specifically noted how different aspects of the election period require protection: “All exercises of expression, at each and every stage of the electoral process – not only the final act of voting – must receive consistent and robust Charter protection” (paragraph 130).

Cheryl Milne, Executive Director of the Asper Centre, notes, “The majority and dissenting opinions represent very different views of our constitution with the majority taking a much narrower interpretation of freedom of expression, characterising the claim as a positive rights claim for an expressive platform and thus not protected by the Charter.”

Lorraine Weinrib, professor emerita at the University of Toronto Faculty of Law and a specialist in constitutional law and litigation, notes that the majority judgment embodies some novel features: “It does not emphasize the importance of the guarantee of the fundamental freedom of expression in protecting the full range of public participation in the vital context of the actual election period. It does not emphasize the importance of democratic deliberation and representation at the municipal level where, as has been so clear during the covid pandemic, local government carries out a distinctive and crucial role in making policy decisions, setting priorities, and providing services in a densely populated, exceptionally diverse context.”

In stressing the importance of the text of the Charter, the majority undermined the well-established understanding that constitutional principles provide fidelity to the Charter’s basic value structure in a changing world. The contrasting factual summaries in the reasoning in this case also makes clear that we need new rules for Charter litigation so that the litigants, whose personal accounts of the actual impact of complicated government legislation on their lives and the lives of their communities, can fully participate in the adjudication of their claims through the full litigation process.

For further information:

Alexi Wood, Counsel
St. Lawrence Barristers LLP
Direct: 647 245 8283 / alexi.wood@stlbarristers.ca

Lillianne Cadieux-Shaw, Co-Counsel
St. Lawrence Barristers LLP
Direct: 647 245 3122 / lil.cadieux.shaw@stlbarristers.ca

Professor Lorraine Weinrib, Professor Emerita
University of Toronto, Faculty of Law
l.weinrib@utoronto.ca

Cheryl Milne, Executive Director
David Asper Centre for Constitutional Rights
cheryl.milne@utoronto.ca

R v Chouhan: The Supreme Court of Canada finds room for disagreement

Posted on by Student

 

By Wei Yang

On June 25, 2021, the Supreme Court of Canada (SCC) released its reasons for judgement in R v Chouhan,1 a case that the Asper Centre intervened in last year.

Background

Mr Chouhan was charged with first-degree murder and was thus entitled to a trial by jury. His trial date was scheduled for September 19, 2019, the same day that legislation eliminating peremptory challenges and substituting the trial judge as the trier for challenges for cause took effect.2 Prior to the new law, a limited number of peremptory challenges were available for both the accused and the Crown to dismiss potential jurors without cause.3 Challenges for cause used to be heard by lay triers instead of the trial judge.4

The federal government introduced this legislation in response to the trial of Gerald Stanley, who was charged with murder in the death of Colten Boushie, an Indigenous man. Mr Stanley was acquitted by a jury composed of zero Indigenous persons – a result of Mr Stanley’s peremptory challenges against five Indigenous prospective jurors.5

Mr Chouhan argued before his trial that the elimination of peremptory challenges violated his ss. 7, 11(d), and 11(f) Charter rights.6 If the amendments were constitutional, Mr Chouhan argued that they applied prospectively and not to his trial.7 The trial judge determined that there were other sufficient jury selection protections and the amendments were purely procedural.8 Therefore, the law was constitutional and applied to all trials after entering into force, including Mr Chouhan’s; neither party was entitled to peremptorily challenge any prospective jurors. Mr Chouhan was convicted.

At appeal, the Court of Appeal for Ontario rejected Mr Chouhan’s constitutional arguments, echoing the trial judge’s finding that other jury-related protections such as representative jury rolls, judicial excusals, and challenges for cause sufficiently preserved Mr Chouhan’s ss. 11(d) and 11(f) rights.9 However, the Court of Appeal held that his substantive right to peremptory challenges was nevertheless affected.10 Therefore, the amendments applied prospectively and Mr Chouhan was entitled to peremptory challenges.11

At the Supreme Court of Canada

The Crown appealed on the temporal applicability issue and Mr Chouhan cross-appealed on the constitutional question.12 The Supreme Court of Canada released its decision from the bench: Wagner CJ declared that a majority of the Court believed that the amendments were constitutional and purely procedural. The appeal was allowed, the cross-appeal was dismissed, and the conviction was restored.

The SCC released its divided reasons eight months later. Writing the joint reasons for judgement (alongside four other sets of reasons) Wagner CJ, Moldaver and Brown JJ held that s. 11(d) does not entitle anyone to a particular jury process.13 The question to be asked on a s. 11(d) challenge is “whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal”, citing Valente v The Queen.14 They agreed with the lower courts that representative jury rolls, the randomness of jury selection, unlimited challenges for cause, and the judge’s power to excuse (or stand aside) prospective jurors protect the independence and impartiality of the tribunal and thus the amendments were constitutional.15 In addition, the changes were purely procedural and applied retrospectively.16 The justices found that abolishing peremptory challenges will likely increase the representativeness of the jury.17 The justices specifically noted, however, that jury diversity is not constitutionally required.18

Wagner CJ, Moldaver and Brown JJ proceeded to define the scope of the existing protections. First, trial judges should consider issuing jury charges and instructions to militate against unconscious bias.19 With challenges for cause, jurors should be asked relevant questions related to circumstances of the case and whether they can set aside compromising beliefs.20 However, the questions must respect juror privacy.21The judge can exercise their discretion to exclude prospective jurors since it is unlikely that individuals will openly admit to their biases.22 Judges can also stand aside prospective jurors if doing so would uphold public confidence.23

Karakatsanis, Martin and Kasirer JJ agreed with the final disposition and the need for robust jury instructions, but cautioned against Wagner CJ, Moldaver and Brown JJ’s description of the scope of the existing jury procedures.24 They opined that it should be left for the lower courts to decide how to interpret and apply the new amendments.25 In addition, one must not rely too heavily on the randomness of jury selection since random selection within an “unequal society” does not eliminate systemic bias.26

Rowe J, in another separate concurring opinion, agreed with the disposition but cautioned against interpreting this judgement as constitutionalizing these jury selection procedures.27 Interpreting these statutes as constitutional requirements would create the absurd consequence of eliminating Parliament’s ability to repeal their own laws, undermining the principle of parliamentary sovereignty.28

Abella J agreed that the amendments were constitutional but dissented on its temporal applicability. In opposition to Wagner CJ, Moldaver and Brown JJ’s more conservative approach, Justice Abella held that as long as judges “vigorously exercise their authority” by using their stand aside power to increase jury diversity and jurors are asked more probing questions when challenged for cause, the accused’s s. 11 rights are sufficiently protected.29 However, the abolition of peremptory challenges still affected a substantive right; the ability for an accused to participate in the empanelment of a jury they themselves view as representative and impartial is a substantive right even if it is not a constitutional one.30 The amendment, therefore, was not purely procedural and did not apply to Mr Chouhan’s trial.31

Côté J, in dissent, claimed Wagner CJ, Moldaver and Brown JJ attempted to create a new jury regime to disguise the fact that the existing one is inadequate.32 The abolition of peremptory challenges creates a gap in the system, violating Mr Chouhan’s s. 11(f) Charter right.33 Stand asides do not sufficiently preserve impartiality because they do not completely eliminate the possibility that the prospective juror will be empanelled.34 Jury rolls are not necessarily representative: when they are sourced from municipal assessment rolls, it prevents some Indigenous persons from being selected.35 Those who have committed certain provincial and criminal offences are also omitted from the jury roll, which excludes many Indigenous and Black persons who are disproportionally represented in the criminal justice system.36 Finally, without peremptory challenges, there is no assurance that jurors will share similar life experiences to the accused, affecting the common sense, competence, and fact finding ability of the jury.37 This infringement cannot be saved under s. 1 of the Charter: it is not rationally connected to the objective of combatting jury discrimination and promoting jury diversity, nor is it minimally impairing (peremptory challenges ought to have been regulated, not eliminated).38 In the alternative, the abolition applied prospectively.39

Implications

The Asper Centre is pleased to see that a majority of the Court shared our view that the amendments were constitutional. The majority of the Court also recognised the reality of unconscious bias, as we stated in our submissions, in addition to affirming the Asper Centre’s argument that peremptory challenges were only one component of a jury selection system that otherwise provides sufficient protections for an accused person.40 However, we recognize the differing views on peremptory challenges in relation to jury representativeness.

Nader Hasan, co-counsel for the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers (and adjunct professor at UofT Law and Asper Centre’s Fall 2020 constitutional litigator-in-residence), who intervened to support Mr Chouhan’s cross-appeal, lauded Côté J’s dissent.41 Despite the Court’s disposition, Hasan noted that this decision will empower defence counsel to more aggressively challenge for cause prospective jurors.42

R v Chouhan continues the Supreme Court of Canada’s pattern of divided opinions.43 Although the judgements on the constitutional question and temporal applicability were relatively clear, this decision nevertheless produced five distinct sets of reasons, none of which represented a plurality or majority of the Court. This division likely reflects the diverse views on the effectiveness of peremptory challenges on jury representativeness, as demonstrated by the parties’ submissions. Ultimately, however, this outcome leaves Canadians and lower courts with a clear conclusion but without decisive directions.

Wei Yang is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.

Footnotes:
1. R v Chouhan, 2021 SCC 26 [Chouhan].
2. Ibid at para 1, citing Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Leg, 2019, c 25.
3. Chouhan, supra note 1 at paras 10, 13.
4. Ibid at para 27.
5. Ibid at para 41.
6. Ibid at para 3.
7. Ibid.
8. Ibid at para 4.
9. Ibid at paras 6, 35.
10. Ibid at para 6.
11. Ibid.
12. Ibid at para 7.
13. Ibid at para 31.
14. Ibid, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25.
15. Ibid at paras 33–36.
16. Ibid at para 90.
17. Ibid at para 41.
18. Ibid at paras 43, 74 (citing Abella J at para 164), 79.
19. Ibid at para 49.
20. Ibid at para 64.
21. Ibid at para 66.
22. Ibid at para 67.
23. Ibid at paras 70–71.
24. Ibid at paras 109–111.
25. Ibid at paras 111–112.
26. Ibid at para 114.
27. Ibid at para 126.
28. Ibid at paras 141–142.
29. Ibid at paras 159–161, 165.
30. Ibid at paras 167, 189, 194, 204–205.
31. Ibid at paras 165, 220.
32. Ibid at para 267.
33. Ibid at paras 260, 267.
34. Ibid at para 269.
35. Ibid at para 272.
36. Ibid.
37. Ibid at paras 275–277.
38. Ibid at paras 288–291.
39. Ibid at para 293.
40. Ibid (Asper Centre’s factum at paras 2, 3, 20).
41. Nader Hasan, “The Côté J dissent in #Chouhan is [three consecutive fire emojis]. The lead decision, on the other hand, suggests that we can deal with potentially racist jurors with a mid-trial instruction ‘don’t be racist’. [Quote Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442578501001216>.
42. Nader Hasan, “On the plus side, the Chouhan decision as a whole is a clarion call to defence counsel to be aggressive with their challenge-for-cause and stand-aside applications. There is at least some recognition that an important tool has been lost with the abolition of peremptory challenges [Reply Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442579977490435>.
43. Cristin Schmitz, “Supreme Court of Canada Hits Record Low 40% Unanimity Rate in 2019; Many Appeals Came from Quebec” (20 January 2020), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada-hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec> (last modified 21 January 2020).

SCC’s Reference re GGPPA Decision: an important milestone, but still a long road to travel

Posted on by Tal Schreier

by Cameron Somerville

On March 25th, 2021, the Supreme Court of Canada (SCC) upheld as constitutional the federal Greenhouse Gas Pollution Pricing Act (GGPPA), which sets a benchmark for pricing greenhouse gas (GHG) emissions across the country. In a 6-3 decision, the SCC established that the federal government has jurisdiction to apply the GGPPA under the Peace, Order, and Good Government powers (POGG) of the Constitution. Significantly, this sets a marker for the federal government’s ability to control greenhouse gas emissions.

“Climate change is real,” wrote Chief Justice Wagner.[1] “It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions.”[2]

This decision, while important, is unlikely to be the last word on carbon pricing in Canada.

Charting A New Course

The GGPPA received royal assent in 2018. The preamble to the legislation details the Act’s stated purpose: limiting the negative impacts of carbon emissions on Canadians’ well-being. Notably, it characterizes climate change as a “national problem.” The SCC has previously held legislation can use the preamble to “provide a base for assessing the gravity” of an issue of national concern.[3]

The GGPPA has two main parts. Part 1 is administered by the Canada Revenue Agency and applies a charge to 21 types of fuel and combustible waste. Part 2 establishes a GHG emissions pricing mechanism for large industrial emitters. Provinces can choose whether to implement a carbon pollution price or implement a cap-and-trade system, that allows corporations to trade emissions allowances under an overall cap, or limit, on those emissions.

The Act only operates as a “backstop,” forcing a system on provinces that don’t already have one in place. Additionally, the Act requires the agency return 90% of the revenue as rebates to provinces and individuals, so it is not a tax.

Diverging Paths: Provincial Courts of Appeal Decisions

Alberta, Ontario, & Saskatchewan challenged the federal government’s right to set price standards for carbon-based fuels and industry-based emissions. Ontario’s and Saskatchewan’s Courts of Appeal ruled the GGPPA falls within the National Concern Doctrine of the federal government’s POGG powers. Both judgements had dissents that indicated the law would be valid if its structure were changed, placing it under the federal tax power.

The Alberta Court of Appeal was the final provincial ruling and the only court to rule the GGPPA ultra vires Parliament. The majority found the Act infringed the provincial power to manage natural resources. The Court held that the National Concern Doctrine failed, as carbon pricing does not possess the requisite degree of unity to make it indivisible, in other words that the doctrine could not be used to assign a new head of power to the federal government where the subject matter falls within the province’s exclusive jurisdiction.

The Latest Stop: Supreme Court of Canada Decision

The SCC split 6-3 in finding the Act intra vires the federal government, with three separate dissenting judgements.

Chief Justice Wagner’s Majority Reasons

The majority judgement uses the Act’s long title to frame its main thrust as not just the mitigation of climate change but mitigation through pan-Canadian GHG pricing mechanisms.[4] They argue both Parts 1 and 2 of the GGPPA are “centrally aimed” at creating one GHG pricing scheme nationally.[5]

The majority finds the law is “tightly focused” and that all the provinces acting together would be “incapable” of enacting legislation with equivalent effects because they could not impose a binding outcome-based standard.[6] Therefore, the law meets the first set of requirements for the POGG national concern doctrine.

Lastly, the majority determines the impact of the legislation is reconcilable with the distribution of legislative powers. Since the law merely operates as a “backstop” within a “narrow and specific regulatory mechanism” it does not unduly infringe provincial powers.[7] Furthermore, considering the interests climate change would harm, they find the impact on provincial heads of power is relatively limited.[8]

They determine the GGPPA meets the criteria established in R v Crown-Zellerbach Canada Ltd. and is intra vires the Parliament of Canada.[9]

The Dissenting Judgements

Justice Côté takes issue primarily with the power granted under the GGPPA to the Governor in Council. He argues no clause should give the executive branch the power to nullify or amend Acts of Parliament. Furthermore, when an Act grants such power, the law cannot be within the national concern doctrine as the minimum standards have not been set by Parliament but by the executive branch.[10]

Justice Brown found the subject matter of the GGPPA was “squarely within” provincial jurisdiction and argued the Court should “condemn” the “leveraging” of climate change.[11] He finds provincial property and civil rights stand out as “the most relevant source of legislative authority” for the GGPPA.[12]

Finally, Justice Rowe took issue with the use of POGG in the majority’s reasons. He felt the doctrine of National Concern, and POGG more generally, should only be used as a last resort to “preserve the exhaustiveness of the division of powers.”[13]

The Road Ahead

This decision is not the end of the story for litigation of environmental legislation and climate change protection in Canada. As Justices Brown and Rowe indicate, the on-going balancing of powers in federalism will no doubt be fodder for the next leg of the journey.

This latest ruling is only directly about carbon pricing schemes. David Suzuki said the judgement gives the federal government the “power to make a difference,” but the extent of that power remains unclear.[14] The SCC in Friends of the Oldman River Society v Canada (Minister of Transport) ruled the “environment” cannot be assigned solely to one level of government, as the “environment” is too broad.[15] This case is likely not the last time a court will need to balance Canada’s climate crisis and federalism issues.

Nonetheless, potential future challenges should in no way undermine the magnitude of this decision. The finding that a matter is one of national concern is “permanent” and confers exclusive jurisdiction on the issue to Parliament.[16] The Supreme Court has moved the line for federal authority in environmental legislation. The question remains just how far it has moved.

Cameron Somerville is a 1L JD student at the Faculty of Law and is a member of this year’s Asper Centre Climate Justice student working group.

[1] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 2 [re GGPPA] [2] Ibid
[3] Reference re Anti-Inflation Act, [1976] 2 SCR 373 at para 66
[4] re GGPPA, supra note 1 at para 58
[5] Ibid at para 71
[6] Ibid at paras 179, 182
[7] Ibid at paras 199-200
[8] Ibid at para 206
[9] R v Crown-Zellerbach, [1998] 1 S.C.R. 401
[10] GGPPA SCC, supra note 2 at para 294
[11] Ibid at para 454
[12] Ibid at para 343
[13] Ibid at para 616
[14] Supreme Court decision puts Canada on right track for carbon pricing, David Suzuki Foundation at https://bit.ly/3fMSCXa
[15] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para 93
[16] re GGPPA, supra note 1 at para 90

Asper Centre Intervention Influences SCC on Suspended Declarations

Posted on by Tal Schreier

by Jeffrey Wang

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.”[1] The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles.[2] Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.

In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.”[3] However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.”[4] For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.”[5] Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy.[6] Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.

This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.

The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards.[7] Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation.[8] The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.[9]

Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons[10]. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation.[11] However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.

The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:

“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”

Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Para 81.

[2] Para 94.

[3] Para 121.

[4] Para 133.

[5] Para 129.

[6] Para 131

[7] Para 148.

[8] Ibid.

[9] Paras 150-151.

[10] Para 175.

[11] Para 176.