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Appeals - Standard of Review (SOR) - Constitutional. 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. . Hillier v. Ontario
In Hillier v. Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed a Charter s.2(c) ['Peaceful Assembly'] appeal, this from POA convictions under the Reopening Ontario (A Flexible Response to COVID-19) Act.
Here the court considers the appellate Charter SOR:(1) Standard of Review
[24] Interpreting the Charter is a question of law that is subject to a standard of correctness.[10] Nonetheless, “the application of those constitutional standards may involve questions of fact or mixed fact and law which attract deference on appeal”.[11] . Ontario English Catholic Teachers Association v. Ontario (Attorney General)
In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly denied) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute.
In these quotes, the court considers the appellate standard of review for Charter issues:F. THE STANDARD OF REVIEW
[47] The constitutional validity of the Act is a question of law to be decided on a standard of correctness. However, this court owes deference to the application judge’s findings of fact, including findings based on social and legislative evidence. As the Supreme Court held in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 49, a judge’s factual findings, including findings on social and legislative facts, are entitled to deference on appeal:When social and legislative evidence is put before a judge of first instance, the judge’s duty is to evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case. The trial judge is charged with the responsibility of establishing the record on which subsequent appeals are founded. Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact. This applies to social and legislative facts as much as to findings of fact as to what happened in a particular case. [Emphasis added.]
See also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 109. [48] This is especially important in a case such as this one where, as discussed in the next section of these reasons, the Supreme Court has expressly stated that the issue of whether legislation substantially interferes with s. 2(d) rights, and specifically collective bargaining rights, is a “contextual and fact-specific” inquiry: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 92.
[49] As held by Donald J.A., in dissent, in British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184, 71 B.C.L.R. (5th) 223, at para. 326, rev’d 2016 SCC 49, [2016] 2 S.C.R. 407 (substantially for the dissenting reasons of Donald J.A.), factual findings underlying a trial judge’s conclusion that a government substantially interfered with freedom of association are subject to the palpable and overriding error standard.
[50] Similarly, in Manitoba Federation of Labour et al. v. The Government of Manitoba, 2021 MBCA 85, 463 D.L.R. (4th) 509, at para. 46, leave to appeal refused, [2021] S.C.C.A. No. 437, the Court of Appeal of Manitoba described the applicable standard of review in deciding on whether wage restraint legislation contravenes s. 2(d) of the Charter as follows:Whether legislation is constitutional is a quintessential question of law. Therefore, the applicable standard of review is correctness. However, to the extent that the section 2(d) inquiry is premised on an assessment of relevant facts, any relevant factual finding will be owed deference and will be reviewed on the palpable and overriding error standard (see Consolidated Fastfrate at para 26). The appellate court will then take a last look at the accepted relevant factual foundation and decide the ultimate issue (whether the legislation is constitutional) on the correctness standard. [51] Accordingly, the questions of whether the Act violates s. 2(d) of the Charter and, if so, whether it is saved by s. 1 of the Charter are to be reviewed on a standard of correctness. This inquiry includes consideration of what factors are relevant to deciding these issues. However, the trial judge’s findings of fact relevant to this assessment are to be reviewed on the palpable and overriding error standard of review.
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