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JR - SOR - Exceptions - Constitutional (2). Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismisses (IMHO unnecessarily harshly) a Charter s.3 ['democratic rights'] and s.15 ['discrimination'] challenge to the federal electoral system.
Here the court notes the obvious point that in an appeal, deference still applies wrt non-legal fact issues (even constitutional/charter ones) - though points out (interestingly) recent SCC doctrine that varies from that wrt mixed fact and law, where a 'correctness' standard has been applied [see para 82-83] (albeit in a JR constitutional context):The limits of deference
[74] The appellants’ s. 15(1) argument can be dismissed on the basis that the application judge’s decision is entitled to deference. His conclusion that causation was not established can be characterized as a finding of fact based on his review of the expert social science evidence. The appellants have not established that the application judge made any palpable and overriding errors that would allow this court to intervene.
[75] The decision to uphold the application judge’s decision on this basis follows the Supreme Court’s instruction in Bedford as to how social science findings are to be treated on appeal. But we should be clear about what this means: that the constitutionality of the federal electoral system rests on a requirement to defer to the findings of a single judge concerning highly contestable social science evidence.
[76] Consider a counterfactual. Suppose that, instead of finding that causation was not established, the application judge made the findings that the appellants submit he should have: that PR systems moderate the effect of sexist attitudes and make it easier for women to get elected; that SMP disadvantages geographically dispersed minority and women voters and candidates; and that New Zealand’s experience with PR is a useful model for Canada – all findings that, according to the appellants, were supported by the expert social science evidence.
[77] These too would be findings to which this court would be expected to defer, but they would support the opposite result: a finding that the SMP electoral system causes a disproportionate impact on women and racial minorities. Given this finding, it would not be difficult to establish that this disproportionate impact has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of women and racial minorities in politics. The result would be a conclusion that the electoral system infringes s. 15(1) of the Charter.
[78] It is difficult to accept that a conclusion that the federal electoral system is discriminatory should depend on the social science findings of a single judge. And yet, that is the result of the Supreme Court’s instruction in Bedford, at paras. 48-56, that appellate courts are to defer to social science findings made at trial.
[79] The problem is not simply that findings of fact based on highly contestable social science evidence are entitled to deference; it is that those findings may essentially determine the alleged Charter infringement. And even to the extent that findings can be characterized as a mixed question of fact and law, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 instructs that the standard of review remains palpable and overriding error – although as I discuss below, there is now some uncertainty in this regard.
[80] The nature of the problem is put in sharp relief by the application judge when he says: “[S]ince the evidence does not establish that implementing PR in Canadian elections would do any better than SMP, the section 15 claim is not made out.” I do not see why the constitutionality of the federal electoral system should depend on this sort of judgment, still less why this sort of judgment should be entitled to deference in this court. How could evidence establish that a foreign electoral system would deliver “better” results than the SMP electoral system? At the end of the day it is academic conjecture about how a different electoral system would operate in Canada. It is usefully discussed in academic and policy development settings, but it is hardly the stuff of constitutional law.
[81] The application judge seems to recognize as much, stating that there was nothing in the record to suggest, let alone prove, that Canada would follow New Zealand’s lead and so achieve similar outcomes if PR were adopted. And yet he strained to reject the relevance of New Zealand’s experience with PR, pointing to relatively minor differences between Canada and New Zealand, including New Zealand’s distinctive approach to tort reform, its smaller population and land mass, and its climate and geography. He could just as easily have noted more salient similarities between the two countries, including the fact that both are Westminster parliamentary democracies with common law legal orders complete with a bill of rights. And had he chosen to do so, he could just as easily have concluded that the representation of women and racial minorities would improve if PR were adopted in Canada, and that the appellants had established discrimination under s. 15(1).
Uncertainty in deference doctrine
[82] This appeal was argued on the basis that the application judge’s legal conclusions on ss. 3 and 15(1) were reviewable for correctness, but that his underlying factual findings were entitled to deference. The parties made no submissions concerning the relevance, if any, of the Supreme Court’s decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, 491 D.L.R. (4th) 385. In that case, the majority of the court endorsed Côté J.’s concurring reasons, which held that findings of mixed fact and law made in connection with a constitutional question are subject to review for correctness. Only findings of “pure” fact that can be isolated from the constitutional analysis are entitled to deference: see paras. 45, 92-97.
[83] The constitutional question in Société des casinos arose on an appeal from a judicial review and was decided in accordance with the framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. Neither Housen nor Bedford was mentioned by the court, nor did the court acknowledge that it was altering the approach established by those cases and others. Nevertheless, two decisions in this court have assumed from Société des casinos that the correctness standard also applies to findings of mixed fact and law arising from civil constitutional appeals: see R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241, at para. 31, and Jacob v. Canada (Attorney General), 2024 ONCA 648, 172 O.R. (3d) 721, at para. 53, leave to appeal refused, [2024] S.C.C.A. No. 488.
[84] Two other decisions from this court, however, applied the palpable and overriding error standard to findings of fact relevant to the legal question at issue: Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101 at para. 51 and Amalgamated Transit Union, Local 113 v. Ontario, 2024 ONCA 407, 172 O.R. (3d) 571, at paras. 31-33. Dissenting in the Amalgamated Transit Union case, Nordheimer J.A. would have applied the approach in Société des casinos and reviewed the mixed findings below for correctness: at paras. 190-94. There also appears to be disagreement on the Supreme Court as to whether the decision in Société des casinos extends to civil constitutional appeals. In their dissenting opinion, Chief Justice Wagner and Justice Moreau cited Housen in asserting that findings of mixed fact and law are reviewable only for palpable and overriding error: at paras. 108-9.
[85] This lack of clarity in the law has attracted academic commentary. See Anthony Sangiuliano & Mark Friedman, “What is the Standard of Review for (Mixed) Constitutional Questions?” (U.B.C. L. Rev., forthcoming). It is not necessary to weigh in on the debate for purposes of this appeal; neither party on appeal has characterized the application judge’s findings as findings of mixed fact and law. It is enough to note that the law requires clarification, not least because the distinction between findings of pure fact and findings of mixed fact and law – where both are made in connection with a constitutional question – may be subtle at best. That is certainly the case here. . Toth v. Canada (Mental Health and Addictions)
In Toth v. Canada (Mental Health and Addictions) (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an unsuccessful JR, that against decisions "reiterating the reasoning of the notices of intent to refuse" "requests to Health Canada under subsection 56(1) [SS: 'Exemption by Minister'] of the CDSA for exemptions from section 4 of the Act to allow them to possess, transport, and consume psilocybin mushrooms for a PSAP training program".
Here the court considers the JR SOR for Charter issues: 'correctness' for whether the Charter "is engaged", and then 'reasonableness' for it's actual application:[16] The Supreme Court of Canada issued its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (York) on June 21, 2024, after the parties’ memoranda of fact and law had been filed in this appeal. As York provided guidance on the question as to when a decision maker must address Charter arguments, counsel provided supplementary submissions to this Court regarding its implications for this appeal.
[17] York confirmed the two-step approach for determining Charter issues as applied by this Court in Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, at paragraphs 32-34: the standard for determining whether the Charter is engaged is correctness, and the standard for assessing the decision maker’s weighing of Charter values is reasonableness.
[18] Writing for the majority in York, Rowe J. held that the question of engagement raises "“a constitutional question that requires a final and determinate answer by the courts,”" and whether the Charter does or does not apply is "“one that will apply generally and is not dependent on the particular circumstances of the case.”" Vavilov’s category of "“other constitutional matters”" which rebut the presumptive standard of reasonableness, "“should not be unduly narrowed”" (York¸ at paras. 62, 65 citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 55 [Vavilov]).
[19] In light of York, the question of whether section 7 of the Charter is engaged by the requests is assessed on a correctness standard. If the Charter is engaged, whether the Minister adequately balanced the Charter interests with the objectives of subsection 56(1) and the scheme of the CDSA is assessed on a reasonableness basis. I agree with Pallotta J. that Vavilov and the standard of reasonableness apply to the assessment of the Decisions from an administrative law perspective.
....
[50] An administrative decision maker need not expressly decide whether a Charter right is engaged by a decision and, if so, how it is balanced (Vavilov, at paras. 9, 91, 94); rather the core question is, in taking into account the nature of the decision and the statutory and institutional context, whether the decision reflects a proportionate balancing of the Charter interests (Doré, at paras. 57, 58, 63). . Canadian Coalition for Firearm Rights v. Canada (Attorney General)
In Canadian Coalition for Firearm Rights v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed four consolidated appeals, here from dismissals from "six applications for judicial review of the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/2020-96 (the Regulations)".
Here the court considers the JR SOR for constitutional (here, Charter) issues:[31] Finally, there is no dispute between the parties that the standard of review for constitutional questions is correctness: see Union of Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN v. Canada (Attorney General), 2019 FCA 212 at paras. 17 and 21. That being said, I agree with counsel for the AGC that this assertion must be nuanced in light of the recent decision of the Supreme Court in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 [Société des casinos]. In that case, a unanimous court agreed that correctness applies only to questions of law and constitutionally significant findings of mixed fact and law. However, pure findings of fact that can be isolated from the constitutional analysis are owed deference: Société des casinos at paras. 45 and 97. . Thibault and Ramsay v. Attorney General of Ontario
In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".
The court here simply states the JR SOR for 'Charter issues':[36] The standard of review for the Charter issues is correctness. . Brisco v. Ontario Civilian Police Commission [IMPORTANT]
In Brisco v. Ontario Civilian Police Commission (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer's JR, here against "a decision of the Ontario Civilian Police Commission, which upheld a hearing officer’s finding that he engaged in misconduct for making a donation to what the hearing officer found to be illegal protests in Ottawa and Windsor" and related penalty.
Here the court nicely states the tricky JR SOR treatment for Charter issues - ie. the correctness exception for 'determination/application' of the Charter, but still the reasonableness standard for Charter 'balancing':[12] The standard of review for whether the Commission failed to recognize the Charter value of freedom of assembly is correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at paras. 63, and 69. However, the parties agree the balancing of Charter values is reviewable on a reasonableness standard: Doré, at paras. 43-54; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 60.
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