Professor of Law, Queen’s University
The Supreme Court’s decision in Oakes may have seemed innocent enough at the time but it is where the trouble begins: the Supreme Court’s assertion of the authority to decide questions of social policy, the scourge of proportionality, and the erosion of the rule of law in Charter interpretation. Other than the wording of the Charter itself (and perhaps not even that), no text has had more influence on the way the Charter is interpreted than the Oakes test. The seeds planted there eventually make possible Justice Rosalie Abella’s recent assertion that the Supreme Court “is the final adjudicator of which contested values in a society should triumph.”
The irony is that in Oakes the Court rejects the justification argued by the government, declares the reverse onus in the Narcotic Control Act to be unconstitutional, and may have believed that it was imposing “a stringent standard of justification” under section 1. Funny how things turn out sometimes.
The mess the Supreme Court has made of section 15 of the Charter begins in Andrews. The words of s 15(1) appear to establish the right to the equal application of laws that are non-discriminatory, to which s 15(2) is a narrow and specific exception. However, in Andrews the Supreme Court is confused and confusing. The judgment says, correctly, that the purpose of section 15 is to ensure equality in formulation and application of the law and that persons who are similarly situated be similarly treated (equality of application). However, it also calls for persons who are differently situated to be differently treated (equality of outcome), with McIntrye J endorsing the notion that “there is no greater inequality than the equal treatment of unequals.” Does section 15 require that the same rules and standards be applied to everyone, or that different rules and standards be applied so as to produce equal results?
Like in Oakes, it is difficult to find fault with the result in Andrews on the facts, but the Court is unable to provide a clear conceptual framework for section 15. Andrews makes it possible for the Court, in section 15 cases that follow such as R v Kapp, to assert that the two parts of section 15 “work together to promote the vision of substantive equality that underlies s. 15 as a whole.” That sentiment, in turn, eventually feeds the misguided quest in Trinity Western for substantive equality in the name of Charter values, which are given precedence over explicitly enumerated fundamental freedoms.
Sometimes constitutional provisions challenge the legitimacy of the regulatory state. When they do, the Supreme Court is ready to protect it. In its recent and widely panned decision in R v Comeau, the Court eviscerates section 121 of the Constitution Act 1867 when it fears that internal free trade will inhibit panoptic regulation. Comeau is just the latest decision from the Court to shield the modern welfare state from constitutional restraints.
In R v Wholesale Travel, the Court finds that the reverse onus in regulatory prosecutions does not violate the presumption of innocence under section 11(d) of the Charter. Like its justifications in Comeau, the Court’s reasoning is woeful. Regulatory prohibitions are essential to public welfare, the Court says, as though polluters are more dangerous than murderers and rapists. Regulatory offences are less serious than ‘true’ criminal offences, it suggests, ignoring the similarity in their penalties including the potential for incarceration. Citizens voluntarily submit themselves to regulation, the Court insists, so are fair game for a reversed onus – even though regulation is so widespread that is impossible to stay clear of its reach. Finally, the Court concludes, since evidence of fault lies in the hands of the accused, that is where the burden should lie ― but evidence of intent lies in the hands of the accused in criminal cases too and the Crown must nevertheless prove intent in those prosecutions beyond a reasonable doubt. In effect, the Court has no juristic reason to distinguish the onus of proof in regulatory and criminal prosecutions. It simply believes that a reverse onus is necessary for the regulatory state to function. Therefore it must be permissible, the Charter be damned.
I can provide no better comment on Dunsmuir than to quote the dissenting judgment of Justices Côté and Brown in Wilson v Atomic Energy of Canada:
This Court has recognized that, where deference is owed, a decision-maker’s interpretation of the law will be reasonable if it falls within a range of intelligible, defensible outcomes: Dunsmuir v. New Brunswick … deferring in this way on matters of statutory interpretation opens up the possibility that different decision-makers may each reach opposing interpretations of the same provision … The rule of law and the promise of orderly governance suffer as a result. When reasonableness review insulates conflicting interpretations from judicial resolution, the identity of the decision-maker determines the outcome of individual complaints, not the law itself. And when this is the case, we allow the caprice of the administrative state to take precedence over the “general principle of normative order”. More troubling still, such a situation calls into question our legal system’s foundational premise that there is “one law for all” since, realistically, what the law means depends on whether one’s case is decided by one decision-maker or another. It goes without saying that the rule of law, upon which our Constitution is expressly founded, requires something closer to universal application. … As long as there is one conflicting but reasonable decision, its very existence undermines the rule of law. [References omitted]
Given its decision in Doré, it is not difficult to understand how the Supreme Court could go so wrong in its abominable 2018 decision in Trinity Western. In Doré, the Court reflects a vision of the Charter that might be unrecognizable to its drafters. Is the Charter not a shield against an overbearing state? Does the government not bear the burden of establishing that any breach of a Charter right is a reasonable limit prescribed by law? Not so much, according to the Court, at least in the context of administrative decision-making.
Doré advances the Court’s continuing project to reconceive the Charter as a progressive document to be wielded in the pursuit of collective goals. The Court says that the Charter contains not just the rights and freedoms written in the text but also “Charter values”, found nowhere but in the Court’s imagination. Administrative decision-makers are to weigh Charter values against Charter rights when exercising their statutory discretion, effectively turning the Charter from a shield into a sword. Vague statutory objectives are sufficiently “prescribed by law” to justify infringing a Charter right if the decision-maker balances Charter values in a “proportionality exercise”. Strange how the Constitution always means what the Court thinks it should.