Messy, But Necessarily So: Judicial Deference Under Section 1 of the Charter

Alex Horbal, 3L, University of Toronto Faculty of Law

Introduction

            The doctrine of judicial deference toward the legislature under section 1 of the Charter is messy, but it may be necessarily so. The Oakes test is the proportionality analysis used to determine whether a law that impairs a Charter right does so in a manner that is reasonable in a free and democratic society, and thus represents a constitutional limit of the Charter right. The text of section 1 of the Charter does not specify how rights-impairing laws should be assessed; Oakes is a judicial construction. When conducting Oakes analyses, the courts sometimes explain that the government will be accorded deference, meaning that the government’s justificatory burden under section 1 will be reduced. In this article, I first explore why section 1 necessitates a practicable doctrine of deference, through both institutional competence and Oakes-based arguments. Next, I present the Supreme Court of Canada’s doctrine of deference and survey the two levels of vagueness this doctrine suffers from. I conclude that the flexibility with which deference is currently accorded to the government in section 1 analyses may in fact be necessary given the nature of the legislature’s policymaking responsibility. 

I. The Necessity of Judicial Deference under Section 1

            There are at least two reasons why Canadian courts require a doctrine to discern when it is appropriate to defer to the legislature’s judgment with respect to section 1 questions. First, the legislature may be better situated than the judiciary to holistically consider some questions under section 1—contrary to the received wisdom that the judiciary is always the appropriate institution to decide rights-related issues. Second, and more concretely, the mechanics of the Oakes test invite courts to take on policymaking more typical of the legislature. I will explore these arguments in turn.

A. Institutional Competence

            When the Supreme Court of Canada talks about deference toward the legislature in the context of section 1, it often refers to the comparative advantages of the legislature and the judiciary. In RJR-MacDonald v Canada, Justice Sopinka explained that “[c]ourts are specialists in the protection of liberty,” whereas the legislature can better make social policy given its institutional resources and the concomitant ability to “mediate between competing social interests and to reach out and protect vulnerable groups.”[1] With this distinction, Justice Sopinka suggested that the legislature is owed a greater degree of deference under section 1 when the impugned law is “social legislation,” and less deference when the law concerns criminal justice.[2] This is a tidy and persuasive explanation of why the courts should apply deference in certain section 1 contexts: we should play to the strengths of the different branches of government.

            However, a closer look at the institutional competence argument reveals an even stronger case for a doctrine of deference under section 1. Justice Sopinka’s proposition—that the courts are superior to the legislature when it comes to the protection of liberty—is not self-evident. The history of liberal democracies such as Australia and Britain contradict the orthodoxy that courts armed with an enforceable bill of rights are necessary for the protection of basic liberties such as freedom of expression or religion. In any case, the question of whether a rights limitation is properly justified in a free and democratic society is a difficult political and moral question. It should not be taken for granted that one institution is better at answering such questions than another. Jeremy Waldron challenges the received opinion that judges will strenuously consider these fundamental questions of political morality as issues of principle and not solely political power.[3] He contends that these fundamental questions, including section 1 questions, may be better addressed in a forum unfettered by legalisms and precedent.[4] Interpreting the vague language of the Charter will not provide clear answers to the multitude of section 1 questions. Perhaps the legislature, unconstrained in the arguments it can hear, is better suited to decide the proper balance between rights and social objectives.[5]

Even if we accept that the legal training and experience of judges render them superior guardians of liberty vis-à-vis the legislature, it is not immediately obvious why judges are better situated to conduct proportionality analysis in the context of rights limitations. It is one thing to have a better understanding of what freedom of expression means; it is another to compare the limitation of such freedom against a legislative aim like the prevention of tobacco addiction in RJR. Timothy Endicott contends that the assignment of such proportionality analysis to courts requires the “institutional premise” that “essential respect for certain human interests can best be secured by a power in an independent tribunal to pass judgment on the justice of pursuing public purposes in ways that affect those interests.”[6] Waldron’s argument that the legislature can more holistically assess rights-related issues casts doubt on the institutional premise—it is simply not clear that judicial review provides something superior for the essential respect of human rights.  

As such, when thinking abstractly about the institutional competence of the judiciary and legislature with respect to section 1, the case for a doctrine of deference goes deeper than the Supreme Court’s dichotomy of criminal and social legislation. In some cases under section 1, it may be preferable to defer to the judgment of the institution unfettered by legalism and precedent.

B. Challenges in Scrutinizing Minimal Impairment

            The mechanics of the Oakes test also emphasize the need for a doctrine of deference: the minimal impairment analysis involves quasi-policymaking that sits uneasily with the unelected, apolitical nature of a court. The analysis of a law’s pressing and substantial objective and the connection between the means and the objective are rarely determinative under Oakes.[7] Rather, the vast majority of section 1 questions are determined under the minimal impairment heading.[8] While the initial articulation of minimal impairment in Oakes stated that the impugned law must impair the right as little as necessary, the Supreme Court in R v Edwards Books and Art Ltd attenuated this standard by adding that the law must limit the right as little as is reasonably possible.[9]Even with the greater margin of appreciation in Edwards Books, the minimal impairment analysis still directs the judiciary to consider policy alternatives and strike down the legislature’s chosen means based on the availability of something less impairing. Given that “[a] judge would be unimaginative indeed if he could not come up with something less ‘drastic’ or a little less ‘restrictive’ in almost any situation,” [10] the minimal impairment analysis sees judges taking on a quasi-policymaking role. As the discussion over the appropriate upper age limit in Irwin Toy v Quebec (Attorney General) illustrates,[11] judges are not always comfortable with this task—and rightfully so. There is often no single correct answer to such questions, and the legislature, unfettered by legalisms and precedent, can more comprehensively consider the arguments for and against the proposed policy.

            Moreover, the actual process of comparing alternative means has the unelected court engaging in counterfactual reasoning that effectively second-guesses the elected legislature’s cost-benefit assessment. Judges—or anyone for that matter—cannot accurately ascertain whether less restrictive policy alternatives will achieve the legislative objective as effectively as the impugned law. The Supreme Court in Canada (Attorney General) v JTI-Macdonald Corp acknowledged this reality: “complex problems may be addressed in a variety of different ways, with no certainty as to which will be the most effective.”[12] Chief Justice McLachlin in Alberta v Hutterian Brethren of Wilson Colony connected this reality to the minimal impairment analysis, stating that “means which do not actually achieve the government’s objective are not considered” at this stage of Oakes, and that “the question to be asked is whether there is a less drastic means of achieving the objective in a real and substantial manner.”[13] Surely, it will sometimes be clear that there is a reasonably less restrictive means: total prohibitions on conduct may not be necessary when a scheme with nuanced exemptions would work just fine. But even then, nuanced regimes entail less efficient public administration. Is it the unelected judiciary’s place to conduct such cost-benefit analyses in the place of the legislature? These problems highlight the need for a doctrine of deference with which the courts can sort out when to rely on the legislature’s reasoning with respect to difficult section 1 questions.

            Therefore, in taking the Oakes test for granted,[14] the minimal impairment inquiry emphasizes the case for some doctrine of deference under section 1. The elected legislature responds to complex social problems with complex legislative schemes and such schemes are, at least in theory, the product of a democratic give-and-take. If Oakes is applied rigorously, courts can easily identify more minimally impairing schemes and can simply hand-wave away any concerns that such alternatives will not achieve the legislature’s objective. To ensure the legislature retains a robust lawmaking capacity, the courts must sometimes acknowledge the limits of their judgment in complex section 1 cases and defer to the legislature’s holistic reasoning process.

II.  Messy Yet Necessary: The Necessity of Flexibility in Deference

The Canadian judiciary has not disregarded these concerns. Rather, it has acted on these issues with an uncertain doctrine. There are two uncertainties with the Supreme Court’s doctrine of deference: when it applies and to what degree. Do the Irwin Toy factors indicate when exactly the reviewing court should apply an attenuated Oakes test? And even if a court is sure that deference applies, to what extent should the court defer to the legislature’s reasoning? In this section of the paper, I will explore the Supreme Court’s doctrine of deference, explain the two uncertainties, and then suggest that such uncertainty is not as alarming as it appears at first blush.  

A. Uncertainty in When Deference Applies

In early Charter cases the Supreme Court developed a doctrine of deference under Oakes. In Irwin Toy, Chief Justice Dickson explained that the courts should be “mindful of the legislature’s representative role,” if the law in question mediates between the claims of competing groups, involves conflicting social science evidence, or protects vulnerable groups.[15] He also explained that a strict Oakes test is appropriate where “the government is best characterized as the singular antagonist of the individual whose right has been infringed.”[16] RJR-MacDonald confirmed the Irwin Toy factors, but both the majority and dissenting decisions held that the applicability of deference does not hinge on whether the government is the singular antagonist.[17] Chief Justice McLachlin explained that criminal laws can involve the “allocation of priorities between the accused and the victim, actual or potential,” and so the courts should look at the social values reflected in the impugned law when determining whether deference applies.[18] Still, in the more recent decision of R v St-Onge Lamoureux, the Supreme Court explained that penal legislation will in fact be “assessed differently than a complex regulatory response to a social problem,” under section 1.[19]

It is not precisely clear when the Supreme Court should invoke deference and attenuate the government’s burden under Oakes because the Irwin Toy factors are vague. Terms or criteria are vague when they have borderline cases.[20] All language involves some degree of vagueness, so the question is to what extent the language in question is vague. Clearly, the legislature is mediating between competing interests when it crafts a law limiting advertisements targeted at children: commercial interests on one hand, and a vulnerable demographic on the other. However, is it mediating between competing interest groups when using criminal sanctions to penalize hate speech? In R v Keegstra, neither the majority nor dissent consider whether deference is owed to the legislature.[21] Yet, it can be argued that section 319(2) of the Criminal Code represents a compromise between fundamental social values: the protection of equality or multiculturalism on the one hand, and the maximization of free expression on the other. In any case, almost every law or government action can be characterized as a balance between competing interests.[22] There are no perfect policies; the business of government is trade-offs. The other two Irwin Toy factors, while exhibiting less vagueness, still generate uncertainty. Social science is rarely uncontested, and whether a law protects a vulnerable group is far from a bright-line rule—it will depend on how the law is characterized. Clever litigators will not struggle to characterize the impugned law so as to align with one of the Irwin Toy factors.

Given the ease with which the government may characterize laws so as to engage the Irwin Toy factors, this first uncertainty risks over-application of deference to the government under section 1 and thus insufficient protection of Charter rights. Vagueness is not itself a problem in legal rules. The limits of language make vagueness ubiquitous in law, and it is the duty of judges and lawyers to resolve borderline cases.[23] However, the considerable vagueness involved in the Irwin Toy factors translates into a constitutional problem in the context of section 1. Endicott explains that proportionality analysis in the human rights context requires judges to take “an appropriate attitude to the judgments of the authorities whose decisions they are reviewing.”[24] While the judiciary must sometimes defer to the legislature’s policymaking competence and democratic legitimacy, deference to the government’s position where it is not duly owed undermines a polity’s commitment to human rights.[25] With a malleable doctrine of deference, the risk of over-application is real. Indeed, scholars have critiqued the Supreme Court’s haphazard and unprincipled approach to deference under section 1 and how this undermines the protection of rights.[26] For instance, Guy Davidov assessed the Supreme Court’s application of deference in the first two decades of the Charter and concluded that any discernable patterns in application “cannot coherently be defended.”[27]

In summary, the Irwin Toy factors exhibit vagueness to an extent that they seemingly apply to any piece of legislation. While the first part of this paper set out two reasons why certain section 1 questions are better resolved by the legislature, the Charter’s protection of rights would be undermined if all rights-impairing legislation engaged the doctrine of deference—not to mention the fact that the court’s invocation of deference under section 1 would lose significance.

B. Uncertainty in the Degree of Deference

Even if a reviewing court is confident that the Irwin Toy factors are engaged, the Supreme Court’s doctrine of deference provides no guidance on the extent to which the court should defer to the legislature. This aspect of uncertainty risks rendering the government’s burden under Oakes a perfunctory exercise. The Supreme Court provides that the consequence of deference is an attenuated Oakes test.[28] However, Oakes is a highly qualitative proportionality analysis; it cannot be mechanically attenuated like a theme park can lower the required height for a roller coaster. It is not unreasonable to suppose that if deference is found to be owed, Oakes becomes a perfunctory exercise. Chief Justice McLachlin, writing in dissent in RJR-MacDonald, was alive to this question and explained that deference “must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed” are justified in a free and democratic society.[29] This limit on deference was affirmed by the majority in Vriend v Alberta: “the notion of judicial deference to legislative choices should not, however, be used to completely immunize certain kinds of legislative decisions from Charter scrutiny.”[30] Still, while the Supreme Court has explained the extent to which deference should not be applied, uncertainty remains as to what application looks like within the outer bounds of deference.

The second uncertainty associated with the Supreme Court’s doctrine of deference is also problematic in that it risks short-circuiting judicial reasoning. If deference is found to apply and there is no clear direction as to what that entails, deference may be used as an instrument to avoid difficult judicial decisions. It may invite motivated reasoning: a judge may initially conclude that the impugned law should be justified under section 1 on the basis of personal reasons and then use deference to provide legitimacy to the public reasoning that follows. Davidov raises this concern: while the use of deference seeks to remove the influence of judges’ subjective preferences from the proportionality analysis by deferring to a democratic body, it exacerbates the problem of subjectivity through its haphazard application.[31]

C. The Necessity of Flexibility

Still, the doctrine’s messiness—or more charitably, flexibility—appears necessary when viewed against the nature of policymaking in a constitutional environment with a broadly interpreted bill of rights. This paper first established the premise that some doctrine of deference is necessary and subsequently critiqued the Supreme Court’s current approach on the basis of vagueness and its resulting uncertainty. But certainty is not the only desirable quality in a doctrine of deference. Ideally, the doctrine is calibrated to the duties and expectations of the legislature as understood in a liberal democracy. In other words, the doctrine should be designed purposively. The legislature is expected to make laws and decisions on innumerable issues, and many (if not most) of these government actions can be said to limit the broadly interpreted rights within the Charter.[32] Some of the resulting section 1 questions will require deference, and the determination of such situations and to what extent the courts should defer will depend on context. The reviewing court will want to hear wide-ranging submissions from both the government and the Charter applicant to get a sufficient picture of the legislative context.

A doctrine of deference should, therefore, be flexible. A more formalistic doctrine with bright-line rules would fail to account for the range of policies that the legislature can and should enact, sometimes in furtherance of the values underlying the entrenched bill of rights.[33] Consider an example of a more formalistic doctrine. Davidov proposes a bright-line rule: deference should only be invoked under section 1 when there is a high risk of judicial mistake and subsequent harm to society if the law is found to be unjustified.[34] First, this bright-line rule is not as determinative as Davidov presents. The rule involves vague terms—specifically “harm to society”—to which clever government lawyers can fit the substance of their Oakes arguments. In any case, such a strict doctrine would impede a comprehensive assessment of the legislative context—something which the Irwin Toy factors, for all their messiness, encourage. Moreover, assuming that Davidov’s bright-line rule leads to fewer applications of deference, another of Endicott’s concerns is introduced: the courts may not defer to the legislature when there is good reason to.[35]

This paper’s discussion should not be read as advocating against the Supreme Court providing additional direction on when the Irwin Toy factors should be applied or to what extent deference attenuates the Oakes test. Assuming the flexible doctrine is maintained, such comments can only improve the quality of section 1 decisions and better delineate between spheres of institutional competency. To this end, the Supreme Court has indicated that deference is usually warranted when the legislation deals with labour relations, environmental issues, and remedial regimes that protect constitutional rights.[36] While maintaining the current doctrine involves uncertainty, Peter Hogg recognized that there is “no practical way to avoid uncertainty of application” of the minimal impairment analysis—the Oakes stage under which deference is commonly applied and section 1 decisions are made.[37]

In sum, the flexibility of the current approach to deference under section 1—though the cause of some uncertainty in judicial decision-making—has intrinsic appeal.  The design of the doctrine of deference should reflect the fact that the legislature must respond to variable social problems. The Irwin Toy factors, for all their vagueness, invite wide-ranging submissions from both the government and the Charter applicant and encourage a contextual analysis of the legislature’s approach to such problems.

Conclusion

            The arguments in favour of a doctrine of deference under section 1 are strong. The legislature’s proportionality assessments are unburdened by legalisms and precedent, and in any case the Oakes test has courts engaging in dubious evaluation of social policy through counterfactual reasoning. Undoubtedly, the doctrine that the Supreme Court crafted in Irwin Toy involves uncertainty in when it should be applied and to what extent. But there are good reasons for the flexibility of the current doctrine. A rush towards a more formalistic doctrine involving bright-line rules may come at the cost of impairing the legislature’s ability to fulfill its policymaking role.

[1] 1995 CanLII 64 at para 68 (SCC) [RJR-MacDonald].

[2] Ibid.

[3] Jeremy Waldron, “Judges as moral reasoners” (2009) 7:1 Intl J Constitutional L 1 at 3.

[4] Ibid at 14.

[5] That said, there is an argument that something important to a liberal democracy is gained by having a separate, apolitical institution review the legislature’s reasoning with respect to rights-related issues. However, we should always ask in any given case what purpose the separation of powers serves. In this paper, I attempt to interrogate the proposition that the courts are better situated than the legislature to answer rights limitation questions. For two competing perspectives on the legitimacy of judicial review in a liberal democracy, see e.g. Samuel Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review” (1990) 9:4 Law & Phil 327 and Jeremy Waldron, “The Core of the Case against Judicial Review” (2006) 115 Yale LJ 1136.

[6] Timothy Endicott, “Proportionality and Incommensurability” in Grant Huscroft, Bradley W Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014) 311 at 340.

[7] Lorian Hardcastle, “Proportionality Analysis by the Canadian Supreme Court” in Mordechai Kremnitzer, Talya Steiner & Andrej Lang, eds, Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice (New York: Cambridge University Press, 2020) 134 at 165.

[8] Peter Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (Toronto: Thompson Reuters Canada, 2020) at §38:20; Hardcastle, supra note 7 at 177.

[9] 1986 CanLII 12 at para 131 (SCC).

[10] Illinois Elections Bd v Socialist Workers Party, 440 US 173 (1979) at 188. The dilemma that courts face at the minimal impairment stage is succinctly described by Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen’s University Press, 1996): “…once the Supreme Court has accepted that the legislative objective is sufficiently important to warrant imposing limits on protected rights, should judges scrutinize the internal dynamics of a policy at the risk of second-guessing complex legislative decisions and potentially invalidating compelling objectives?” (at 7).

[11] 1989 CarswellQue 115 at para 75, [1989] 1 SCR 927 (WL) [Irwin Toy]. 

[12] 2007 SCC 30 at para 43.

[13] 2009 SCC 37 at para 54 [emphasis added].

[14] One might argue that the necessity of a doctrine of deference is merely a symptom of the Supreme Court’s interpretation of section 1 and consequent construction of Oakes. That is, a different interpretation of section 1 and a different heuristic for evaluating rights-limitation questions would avoid the need for a doctrine of deference altogether. In contrast, this brief paper takes the Oakes test for granted and explores why this heuristic demands a doctrine of deference.

[15] Irwin Toy, supra note 11 at para 80.

[16] Ibid at para 81.

[17] RJR-MacDonald, supra note 1 at paras 84, 135.

[18] Ibid at para 135.

[19] 2012 SCC 57 at para 39.

[20] Lawrence B Solum, “Legal Theory Lexicon 051: Vagueness and Ambiguity” (December 10, 2023), online: <https://lsolum.typepad.com/legal_theory_lexicon/2006/08/legal_theory_le.html>.

[21] 1990 CanLII 24 (SCC), [1990] 3 SCR 697 [Keegstra].

[22] Guy Davidov, “The Paradox of Judicial Deference” (2001) 12:2 NJCL at 24.

[23] Solum, supra note 20.

[24] Endicott, supra note 6 at 338.

[25] Ibid at 339.

[26] See e.g. Alyn James Johnson, “Abdicating Responsibility: The Unprincipled Use of Deference in Lavoie v Canada” (2004) 42:2 Alta L Rev 561; Iryna Ponomarenko, “The Unbearable Lightness of Balancing: Towards a Theoretical Framework for the Doctrinal Complexity in Proportionality Analysis in Constitutional Adjudication” (2016) 49:3 UBC L Rev 1103.

[27] Davidov, supra note 22 at 23.

[28] RJR-MacDonald, supra note 1 at para 68.

[29] Ibid at para 136.

[30] 1998 CanLII 816 at para 54 (SCC).

[31] Davidov, supra note 22 at 19.

[32] Consider the fact that even the hate speech prohibition contemplated in Keegstra, supra note 21 was determined to impair freedom of expression. One may argue that a doctrine of deference under section 1 would play a smaller role or not be necessary at all if Charter rights—particularly the fundamental freedoms under section 2—were interpreted more narrowly. Presumably, fewer Charter challenges would go to section 1 analysis in this alternative Charter reality.

[33] Keegstra, supra note 21 is a good example of this. While a prohibition on hate speech impairs freedom of expression, it also furthers the values underlying the guarantee of equality in section 15(1) of the Charter and the recognition of multiculturalism as a Canadian value in section 27 of the Charter. Sometimes the society envisioned by the bill of rights can only be implemented through the limitation of certain liberties.

[34] Davidov, supra note 22 at 36.

[35] Endicott, supra note 6 at 338–39.

[36] R v Advance Cutting & Coring Ltd, 2001 SCC 70 at para 257; Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62 at para 94; Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 at para 46.

[37] Hogg & Wright, supra note 8 at §38:21.