In recent days the Manitoba government has prescribed what items the public is allowed and not allowed to buy – winter boots? Yes. Pumps or running shoes? No. Dog brush? Yes. Dog toy? No. There was also a recent kerfuffle over drive-in worship services. The government initially opposed the services, arguing against them in court, but then quickly reversed its position, allowing them as a temporary measure. In Ontario, a Toronto church has sought temporary relief against lockdowns while it waits for a full hearing that challenges the constitutionality of those lockdown measures. And in Quebec, a province-wide curfew of 8pm-5am will be imposed as of January 9 with workers required to show papers to prove any curfew travel is legitimate, and spouses who live apart prohibited from traveling during curfew to see one another.

With severe restrictions on liberty that are in a constant state of flux, it’s not surprising to find a lot of people wondering “what about our Charter rights?” In this post, we’re going to look at the Charter and how it works: what rights it protects, and how courts consider Charter rights claims.

We’ve created a space in The Green for Christian leaders who want to talk about these issues – pandemic restrictions, religious freedom, conflicting opinions, uncertainty. Share your thoughts in a space where people are committed to listening well and respecting each other. Please join in!

Now, as you get started with Charter Rights 101, I’ll warn you in advance that this post is longer than usual, so you’re going need a few minutes.

Protected Rights

The Charter is part of our constitution. As a constitutional document it is ‘supreme’ in that all other laws must be consistent with the Charter. And while our constitution – and Charter – are Canada’s ‘supreme’ documents, the Charter actually begins with a preamble recognizing that Canada is “founded on principles that recognize the supremacy of God and the rule of law.” But before you start planning out a religious freedom claim with this statement in mind, you should know that the Supreme Court of Canada explains it as simply being an articulation of the “political theory on which the Charter’s protections are based.”

What are those protections? The Charter protects seven broad categories of rights:

• Fundamental freedoms: freedom of conscience and religion; thought, belief, opinion and expression; peaceful assembly; and association.
• Democratic rights: the right to vote, a five-year maximum term for legislative bodies (with exceptions for war, invasion or insurrection) and a minimum once-per-12 months meeting of legislative bodies.
• Mobility rights: citizens have the right to enter, remain in or leave Canada; to move from province to province and to look for work in any province.
• Legal rights: apply most directly to interactions with the justice system and include rights like knowing why you’re being arrested, the right to counsel, to not be arbitrarily detained, to be protected against unreasonable searches, to be tried within a reasonable period of time, and to the rights of life, liberty and security of the person.
• Equality rights: provide for equal protection and benefit of the law without discrimination on the basis of certain, listed (and unlisted but added through court decisions) characteristics like race, colour, religion, sex, disability.
• Language rights: entrench English and French as the official languages of Canada. Related, citizens have the right for their children to be educated in the minority language in a province.

Application of Rights

The Charter applies to the federal and provincial governments. It doesn’t apply to your neighbour. “Government” includes legislation, direct government actors, and government actors by virtue of legislative control/authority. If the government decided to close religious private schools but not public schools and not other private schools, that would raise Charter claims. If your neighbour vehemently opposes religious schools, thinks they should all be permanently closed and publicly promotes that view, that would not raise a Charter claim.  

It also doesn’t usually apply to private entities.* Business owners, non-government service providers and employers are not obliged to adhere to the Charter. They are obliged to follow human rights codes. These codes or acts often provide similar protections and are usually informed by how we understand Charter rights, but the general rule is that you can’t make a Charter rights claim against a non-government entity.

*There are some grey, “middle ground” areas. If an entity exercises government functions or implements government programs, the Charter would apply. It’s a context-specific question that looks at the nature of the activity to decide whether it is truly governmental in nature. For example, the Charter has not been applied to a university’s mandatory retirement policy, but has been applied to a university’s regulation of freedom of expression by students on university grounds.

Claiming Rights

Whoever is claiming a Charter right has to prove that the right has been infringed. For example, a religious freedom claimant  needs to show that (1) she sincerely believes in a belief or practice that has a nexus with religion and (2) the law or rule interferes with her ability to act in accordance with her beliefs in a way that is more than trivial or insubstantial. That means the beliefs or practice must reasonably or actually be threatened.

Other rights have other tests. The test for an infringement of religious freedom is not the same as, for example, the test for expression or equality.

But just proving an infringement doesn’t end the analysis. If the right has been infringed, the obligation (or “onus”) shifts to the government to try and show that the infringement is justified. This is necessary because no right is – or can be – absolute.

Justifying Rights Infringements

Section 1 of the Charter allows Charter rights to be infringed when the limits are “prescribed by law” and “can be demonstrably justified in a free and democratic society.”

What does that mean? In a 1986 decision known as Oakes, the Supreme Court of Canada set out a test to practically apply section 1 and figure out whether rights infringements can be justified. The Oakes test has a few parts and we’ll quickly walk through each (volumes could be written on each component, so what follows here is only an overview!).

Step One: Is the limit prescribed by law?

What does it mean for a limit to be prescribed by law? This part of the test basically asks first, whether the limit is authorized by law, as opposed to being arbitrary; and second, whether the limit is precise, accessible, and clear enough so that people can regulate their conduct.

This isn’t a high hurdle to pass and to fail the law or rule limiting the right would have to be so obscure that it is “incapable of interpretation with any degree of precision.”

Step Two: Is the limit reasonable?

This step has a number of sub-steps.

Is the objective pressing and substantial?

This asks whether the objective of the law or rule is sufficiently important to justify overriding a constitutionally protected right or freedom. At this stage the consequences aren’t yet taken into account. It simply asks what the law is trying to accomplish and could that be important enough that rights would need to acquiesce.

Is the limit rationally connected to the objective?

Another way to phrase this is whether the law is carefully designed to achieve the objective (which is pressing and substantial). There must be a causal connection between the infringement and the benefit sought, asking whether the rights-limiting measure can further the objective.

Is the limit minimally impairing?

Another way to phrase this is whether the law impairs the Charter right as little as possible. It doesn’t have to be perfect, but the government would have to provide an explanation if a significantly less intrusive and equally effective measure was not chosen.

Is there proportionality?

Another way to phrase this is whether the overall effect of the law on the claimants is disproportionate to the objective. Is the harm from infringing the right outweighed by the benefits associated with the rule in a proportional way?

Claiming & Justifying Rights Infringements: An Example

Let’s take the steps outlined above and go through them in a real case. In Taylor v Newfoundland and Labrador, Kim Taylor, along with the Canadian Civil Liberties Association (CCLA), challenged COVID-19 related travel bans.

Section s 28(1)(h) of the Public Health Protection and Promotion Act (PHPPA) authorizes the Chief Medical Officer to restrict travel to the province. In April 2020, a “Special Measures Order” was issued that limited entry to residents, asymptomatic workers and those in extenuating circumstances, with a second “Special Measures Order” modestly expanding the list of circumstances considered extenuating.

Taylor sought an exemption after her mother unexpectedly passed away. She made arrangements to self-isolate for 14 days after arriving in Newfoundland from her residence in Halifax, Nova Scotia, and for the funeral to take place after that period. Her request was denied. She submitted a request for reconsideration, and she was ultimately granted entry, but only after the funeral had taken place.

In the court challenge, Taylor argued two things. First, that s 28(1)(h) of the PHPPA was outside the province’s scope of constitutional authority and that by restricting all travel it violated her s 6 Charter right to mobility. Second, that the province’s decision to deny her entry to attend her mother’s funeral violated her s 7 Charter rights to life, liberty and security of the person. The CCLA also tried to challenge investigative and enforcement provisions but the court did not give CCLA standing (the right to) challenge those additional sections.

Claiming the Right

After reviewing the history of s 6 mobility rights in Canadian court decisions, the court in this case found the claim was to “a simple right of mobility” to travel within Canada and that Taylor’s right was infringed when she was denied entry. Section 6 is a “right of action,” the “right to choose,” the “right to travel for livelihood or residence,” the “right to come and go” as one pleases. Section 6 does not limit mobility rights to a certain part of Canada or to someone’s province of residence. And, the court asked rhetorically, how does someone exercise this right “without the ability to traverse provincial and territorial boundaries?”

Section 7 of the Charter protects the life, liberty and security of the person. Underlying liberty and security of the person is a concern for the protection of autonomy and dignity; the right to make fundamental personal choices free from state interference.

The court disagreed that Taylor’s s 7 rights were infringed because the rights usually protected under this section “are qualitatively different” than the choice to attend a family funeral. Taylor was unable to demonstrate an infringement of her s 7 rights.

Justifying the Infringement

In this case, the s 7 rights didn’t move on to the justification stage because the court disagreed they were violated. The s 6 rights were violated, and the question then became whether that violation was justified.

Step One: Is the limit prescribed by law?

The PHHPA is a piece of legislation, which makes the answer here an easy “yes”.

Step Two: Is the limit reasonable?

Is the objective pressing and substantial?

The court held that the objective of the travel ban was “to prevent the spread of COVID-19 in the province” and that “the existence of COVID-19 as a public health emergency is beyond question.”

Is the limit rationally connected to the objective?

Taylor argued that the government failed to show why the requirement for self-isolation was insufficient to address its concern, noting that the government had “already been successful at flattening the curve.” The government used modeling to justify its policy and decision. While the government is supposed to bear the burden of proof to justify rights limitations, the court commented that “no evidence has been adduced to counter [the government’s] conclusion” or question the modeling methodology. Based on the uncontradicted evidence, the court held it was “beyond argument” that the restriction was an effective means to meet the objective.

Is the minimally impairing?

The court accepted that a “pandemic is not a magic wand which can be waved to make constitutional rights disappear” or immunize a decision of the Chief Medical Officer from review. However, the court also found that even though other measures were taken, based on the evidence presented, none of them were effective substitutes for the travel ban. The travel ban was “integral” to “wrestling this disease into submission” and it satisfied “the least drastic means component” of the test.

Is there proportionality?

In a perfunctory analysis on this point, the court found “while restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor, the collective benefit to the population as a whole must prevail.”

In the end, the government succeeded in justifying the rights violation. Ms. Taylor’s application was dismissed.

Conclusion

And that, patient readers, in a nutshell is how a real-life Charter rights claim was analyzed. What can we learn? Evidence is exceedingly important, and even though a claimant doesn’t bear the burden of disproving a justification, leaving evidence uncontradicted will not help your case.

Charter challenges are always, well, a challenge. But from this example we learn that in the context of COVID-19 claimants have an even greater uphill battle. It may be clear that certain Charter rights, from association to mobility, are infringed by government regulations. On the question of religious freedom under COVID restrictions, see Professor Brian Bird’s recent column in the Vancouver Sun. Establishing an infringement is only the first step in making a Charter claim – it doesn’t necessarily mean that the courts will grant a remedy or overturn restrictions. The more difficult task is to demonstrate whether the infringement is justified in a free and democratic society given the deference of courts to public health officials, and the weight given to government objectives during the pandemic.

Join the Conversation!

We would love to hear how you are wrestling with the questions around pandemic restrictions and religious freedoms. And we would love to hear how you are continuing to deliver the Gospel during pandemic restrictions. 

We’ve created a space in The Green for Christian leaders who are willing to talk to each other, listen to each other, and develop a respectful and stimulating dialogue. Please joins us! We would love to hear your questions and have you share your ideas.