Does One Size Fit All? Navigating Reasonable Limits in Pandemic Charter Litigation
Myim Bakan Kline, 3L, Volume 80 Senior Editor
The constitutional rights of Canadians are not without limits. Section 1 of the Canadian Charter of Rights and Freedoms (Charter) provides that the Charter’s rights and freedoms are subject to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society. The COVID-19 pandemic has led to a flurry of legislative and administrative measures across Canada, some of which are alleged to infringe or limit Charter rights and freedoms. Though most of these allegations have lived and died in popular discourse, a handful of cases have been litigated and resulted in judicial decisions [1].
This post examines two such cases – Taylor v Newfoundland and Labrador, 2020 NLSC 125 (CanLII) (Taylor) and Beaudoin v British Columbia, 2021 BCSC 512 (CanLII) (Beaudoin). In each case, the respective court found a breach of a Charter right – section 6 in the former, section 2 in the latter – that was held to be justified under section 1. Taken together, Taylor and Beaudoin provide glimpses of the degree of section 1 deference Canadian courts are likely to give to legislative and administrative actors responding to a pandemic, and the form in which that deference is exercised. The post concludes by questioning which standard of review should apply to future pandemic-related cases, with an emphasis on section 7.
The Newfoundland and Labrador Supreme Court’s Decision in Taylor
Between March 4th and 5th in 2020, Newfoundland and Labrador’s Chief Medical Officer of Health (CMOH) issued two Special Measures Orders (the Orders) prohibiting all individuals from entering the province, with certain exceptions. The Orders were issued in accordance with the CMOH’s power under section 28(1)(h) of the Public Health Protection and Promotion Act to “make orders restricting travel to or from the province or an area within the province” in the context of a public health emergency.” Kimberly Taylor, who was denied access to the province based on the Orders, challenged their constitutionality on federalism and Charter grounds. Burrage J found that the Orders infringed Ms. Taylor’s section 6(1) mobility right (at para 366). The authorizing legislation, however, was intra vires provincial jurisdiction and Ms. Taylor’s right to liberty under section 7 right was not infringed.
Application of the Oakes Test in Taylor
The Taylor case raises important questions with respect to the standard against which orders made by public health officials that are alleged to infringe Charter rights should be reviewed. Taylor was argued and decided as a Charter case, not one within the realm of administrative law (at para 9). This is despite the fact that the Orders in question were acts of an administrative official exercising discretion. Burrage J remarked that the applicants had “bigger fish to fry” than a case in administrative law (at para 9). This overtly constitutional characterization of the case may help explain why upon finding an infringement of Ms. Taylor’s section 6(1) Charter right to mobility by the Orders, Burrage J applied the test from R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC) at section 1 (Oakes) (Taylor at paras 419-24). As we’ll see shortly, in Beaudoin these same factors were understood as suggesting the arguably more deferential approach to section 1 found in Doré v Barreau du Québec, 2012 SCC 12 (CanLII) (Doré).
In Taylor, Burrage J is oblique on the matter of deference in relation to Charter review. While acknowledging that an overly deferential approach to the CMOH’s Orders would be a mistake (at paras 460, 463), he is quick to add that “it is not an abdication of the court's responsibility to afford the CMOH an appropriate measure of deference” (at para 464). Most clearly, he notes that the CMOH should receive at least “some measure” of deference (at paras 460, 463). Notably, while courts acknowledge deference to government and legislatures can, in certain circumstances, be appropriate within the Oakes framework, Doré overtly embraces deference as the presumptive posture.
The British Columbia Supreme Court’s Decision in Beaudoin
In Beaudoin, the petitioners – a group of religious persons and organizations – wished to hold religious services in person. Due to a complex series of Gathering and Event Orders (G&E Orders) issued by British Columbia’s Provincial Health Officer (PHO), the Petitioners were effectively barred from holding in-person services in the ways they wanted to. The Petitioners argued that the G&E Orders unjustifiably infringed sections 2(a), (b), (c), and (d), sections 7 and 15(1) of the Charter (at para 67). Hinkson CJSC disposed of the sections 7 and 15(1) claims, both of which were only summarily pleaded. However, in relation to sections 2(c) and (d), freedom of association and freedom of peaceful assembly respectively, the judge found that some of the G&E Orders predating those currently in force had infringed these rights, and that those infringements were not justified under section 1. In respect of the section 2(a) and 2(b) claims, Hinkson CJSC found that G&E Orders currently in force infringed both rights but were justified under section 1.
Applying the Doré Test in Beaudoin
Beaudoin is particularly telling on the issue of standard of review under section 1, and, on this point, it provides a contrasting approach to Taylor. The parties and intervenors in Beaudoin were unable to agree on whether the test from Oakes or Doré should be applied (at para 206). The Oakes test, favourable to the petitioners, establishes exhaustive and rigid criteria that governments must make out on a balance of probability to justify infringements of the Charter. In contrast, Doré requires only that government demonstrate that a decision is reasonable (at para 216). In Loyola High School v Quebec (Attorney General), 2015 SCC 12 (CanLII), Abella J remarked on there being a facet of “analytical harmony” between the Doré test and the two final stages of the Oakes test, minimal impairment and balancing (at para 40). Indeed, the Doré test is meant to work the same justificatory muscles as the Oakes test, but in a way that gives effect to the unique characteristics of administrative law and that, ultimately, is more deferential to government (Doré at para 37).
Hinkson CJSC determined the Doré test is the appropriate one to apply as the G&E Orders were “more akin to an administrative decision than a law of general application” and flow from discretion authorized by statute (at para 218). Notably, Hinkson CJSC acknowledges the use of the Oakes test in Taylor, but he draws what he considers to be an important distinction: the CMOH’s Orders at issue in Taylor, he holds, were “orders of general application” (at para 211), whereas the G&E Orders in this case were not.
Reconciling (or Not) Taylor and Beaudoin?
Taken together, Taylor and Beaudoin reveal the complexity of assigning an appropriate standard of review for section 1 analyses of public health orders, and indeed administrative orders more generally. As such, they contribute to an emerging jurisprudence on how to conceptualize and deploy deference to administrative decision makers, and how that can, and should, be built into the section 1 inquiry. In Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII) (TWU) the Supreme Court was clear that the Doré framework should be applied where the constitutionality of an administrative decision is challenged (at paras 57-9). The standard is such that “the reviewing court must be satisfied that the decision reflects a proportionate balance between the Charter protections at play and the relevant statutory mandate” (at para 59). This articulation of the standard was referenced in Beaudoin, but not in Taylor. The divergence from that standard in Taylor, however, reveals a persistent debate on how to consider section 1 justification in the context of administrative decisions that implicate Charter rights.
That debate arises from the different rationales underlying Doré and Oakes. Doré sets a lower bar to meet than Oakes, one presuming the appropriateness of deference to administrative decision makers making discretionary decisions in close proximity to particular factual circumstances. In Doré, for example, Abella J notes that “[w]hen Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts,” which, she says, should attract the kind of deference typical in administrative law, embodied by the standard of reasonableness (at para 36, emphasis added). By implication from both Doré and Beaudoin, the Oakes test is more suited to reviewing laws or other rules (including officials’ discretionary orders) of general application. The more stringent requirements in Oakes arguably flow from the assumption that the universal scope of rules of general application – ones applicable to all citizens in any factual context in which they are relevant – creates broader potential for rights abuses and greater need for governmental power to be checked. To that end, the onus in justifying an infringement of a Charter right rests on government and is typically robust.
Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII) is instructive. Deschamps and Abella JJ concurring distinguish between decisions/orders of administrative bodies and norms “such as a law, regulation, or other similar rule of general application”. They hold decisions/orders should be analysed on an administrative standard of review (which would later become the Doré standard) and norms should be considered under Oakes (at para 103). The circumstances in Taylor and Beaudoin do not fit neatly into either category. In both cases, the relevant orders were made by appointed administrative officials exercising broad discretionary statutory authority. Though the noted distinction is that the orders in Beaudoin were more closely tailored to particular circumstances than those in Taylor, which were more akin to laws of general application, it is arguable that the orders in Beaudoin were not really that different from those in Taylor; in fact, they may have more closely resembled laws of general application. They prohibited all in-person religious services (subject to variances), and did not target any particular entity as one might expect in a truly administrative decision “applied in relation to a particular set of facts” (Doré at para 36). It is true that the G&E Orders were particular in substance – in the sense of being tailored to concerns relating to specific activities during religious gatherings (such as the singing, which, according to the PHO and accepted by Hinkson CJSC, heightened risks of transmission) – but the same is true of the detailed travel restrictions at issue in Taylor. Doré, which was decided within the context of a tribunal decision pertaining to one individual, is based on particularity of application, not particularity of substance – on the idea that administrative decisions target particular individuals and groups. The orders in Beaudoin were arguably universal. They targeted everybody involved in the proscribed activities. In that way, they were not all that different from their counterparts in Taylor. In both cases, the judges deferred to the judgement of the public health officers to some degree.
Conclusions and Questions for Further Jurisprudential Development
The Supreme Court’s decision in TWU – where Doré was confirmed as the test that should be applied to discretionary administrative decisions – was not nuanced by Deschamps and Abella JJ’s discussion in Multani of the distinction between decisions/orders and norms, and neither Multani nor TWU were mentioned in Taylor. Yet, Deschamps and Abella JJ’s reasoning that laws, regulations and other “similar rule[s] of general application” should be within the purview of Oakes might help explain Burrage J’s inclination to apply Oakes in Taylor. The principle of rule of law is typically understood as requiring universality of application to the extent that all who are subject to it are equallysubject to it. Deschamps and Abella JJ’s discussion in Multani is supported by the section 1 language of “prescribed by law” which, understood purposively, can surely include more than just legislation and regulation, but also other kinds of government action that take the form of universally applicable norms.
A generally applicable public health order would seem a good candidate for this extension. Whether a similar rationale directly influenced Burrage J’s reasons in Taylor is unclear, but it could have, and arguably it should have. Why, after all, should it matter from the perspective of an individual whose Charter rights have been limited or infringed whether a rule or principle of general application has its origins in legislation, regulation, or an official order? The Supreme Court has continually insisted that substance matters more than form, which is evident in its account of purposive reasoning and its insistence on considering social context at all stages of analysis, including section 1. Bearing this in mind, the substance of a rights violation by a legal norm of general application should matter more than the particular form it takes.
It seems unlikely that TWU will be the final word on these questions given its lack of engagement with the reasoning from Deschamps and Abella JJ’s concurrence in Multani, and the existence of cases like Taylor. Indeed, in the more recent case of Gateway Bible Baptist Church et al v Manitoba et al, 2021 MBQB 219 (CanLII) (Gateway), Joyal CJQB acknowledged “that the standard of review for these public health orders is not entirely clear or certain” and that reasonable arguments can be made as to whether Oakes or Doré should apply (at para 36). In that case, Joyal CJQB found that the impugned public health orders were “akin to legislative instruments of general application rather than an administrative decision that affects only particular individuals” (at para 36). Interesting is that the impugned public health orders in Gateway were very similar to the G&E Orders in Beaudoin; opposite to Beaudoin, however, Joyal CJQB applied the Oakes test. None of these cases had seen appellate review at the time of writing.
A further question has been posed in all of these cases, but answered in none: how would deference to government be exercised in the context of an administrative order of general application infringing a litigant’s section 7 rights? One possible candidate for this is a vaccine mandate, such as the recent federal one involving federal public sector employees. Section 7 has not historically elicited a great degree of section 1 deference from courts in the context of infringements [2]. Yet, the possibility of limiting a section 7 right in the context of a pandemic is made more plausible by dicta from Lamer J in Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC) (MVR). Section 1, Lamer J said, could potentially rescue a violation of section 7 “in cases arising out of exceptional conditions, such as … epidemics” (at para 85).
In the event that a section 7 infringement was found by a court and a section 1 inquiry thus became necessary, several questions would be raised: Would this be the exceptional case, contemplated by Lamer J? Would it be a case, like Beaudoin, where courts might avoid the rigours of Oakes altogether by emphasizing the administrative nature of the offending rule, such as claiming the above-noted vaccine mandate applies only to federal employees, a particular group of people involved in particular activities? Would that diversion even make any difference in light of the “conceptual harmony” that has been noted between Oakes and Doré, and the overwhelming importance of dealing with a public health crisis? These questions cannot be answered now. But they are questions courts will likely face in the not-too-distant future.
[1] See for e.g. Gateway Bible Baptist Church et al v Manitoba et al, 2021 MBQB 219 (CanLII); Spencer v Canada (Health), 2021 FC 621 (CanLII); Canadian Constitution Foundation v Attorney General of Canada, 2021 ONSC 4744 (CanLII); Koehler v Newfoundland and Labrador, 2021 NLSC 95 (CanLII); Taylor v Newfoundland and Labrador, 2020 NLSC 125 (CanLII); Beaudoin v British Columbia, 2021 BCSC 512 (CanLII).
[2] Peter W Hogg and Wade Wright, Constitutional Law of Canada, 5th Edition (Toronto: Thomson Reuters, 2021) (loose-leaf updated 2021), ch 38 at 21.