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Charter - s.1 Oakes - Means-Ends Balancing. 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 'means-ends balancing' element of the Charter s.1 proportionality test:(d) Are the Deleterious Effects of the Gathering Limits Proportionate to its Salutary Effects?
[58] The basic question in the third and last proportionality inquiry is this: “is the limit on the right proportionate in effect to the public benefit conferred by the limit?”[74] Or, as it was put in Bedford: “whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest.”[75] This analysis “takes full account of the ‘severity of the deleterious effects of a measure on individuals or groups’.”[76] It entails a “broader assessment of whether the benefits of the impugned law are worth the cost of the rights limitation”, or, putting it the other way, whether “the deleterious effects are out of proportion to the public good achieved” by the limits.[77]
[59] This form of analysis assists in determining whether it is just for the legislation to require some individuals to bear the burden of the negative effects in order to secure the benefits of the positive effects for the common good – a good that benefits the appellant as well.[78]
[60] The application judge found, at para. 103, that “[t]he imposition of the Gathering Restrictions for approximately two months was not disproportionate to the threat facing Ontario in the spring of 2021.” He added, at para. 105:In the extraordinary circumstances existing in the spring of 2021, the Gathering Restrictions were both necessary and a proportionate response to the most significant health crisis of our time. The challenged restrictions were justified under s. 1 of the Charter. [61] The application judge made a basic error in his approach to this question. He did not pay due regard to the limit – the absolute prohibition – imposed by the gathering limits on the fundamental freedom of peaceful assembly. He did not assess peaceful assembly separately as a fundamental freedom protected by s. 2(c) of the Charter. To repeat the instruction in G, the court must now focus on justifying the specific infringing measure rather than on the law as a whole. The application judge failed to do so.
[62] The gathering limit to be assessed under the third inquiry of the s. 1 proportionality analysis is the complete ban on peaceful assemblies, particularly outdoor political protests. I consider the deleterious effects, next the beneficial effects, and then whether Ontario struck a demonstrably justified balance.
(i) The Deleterious Effects of the Gathering Limits on Peaceful Assembly
[63] The question is whether the negative impact of the gathering limits on the right to peacefully assemble is proportionate to the law’s pressing and substantial goal of preventing the spread of COVID-19.[79]
[64] The deleterious effects include the following. The fundamental freedom of peaceful assembly was eliminated entirely for two months. Some gatherings were permitted in certain circumstances, such as “a wedding, a funeral or a religious service, rite or ceremony”.[80] However, individuals or groups who wanted to publicly assemble to protest COVID-19 control measures were prevented by law from doing so either indoors or outdoors. As noted, outdoor protests are especially effective at amplifying minority voices and expressing political dissent. People who wished to participate in outdoor protests were denied the opportunity to influence public policy by this time-honoured method. The core problem with the determination of proportionality is that the detriments to be suffered by individuals and groups in any case under consideration, on the one hand, and the benefits that accrue to the common good, on the other hand, are usually incommensurable. There is no common basis, common denominator or common measure for evaluating and balancing the competing claims of the individuals and groups negatively affected by a law or decision, against any benefits to the common good. Nonetheless, subject to judicial forbearance, often the court must declare an outcome.[81]
(ii) The Beneficial Effects of the Gathering Limits on Peaceful Assembly
[65] The public good sought by the gathering limits was preventing the spread of COVID-19. This is unquestionably a legitimate state goal in pursuit of the common good. The question is whether the societal benefits of the gathering limits were proportionate to the detrimental effects of the ban on peaceful assemblies on Mr. Hillier.[82]
[66] This assessment cannot only be abstract; it must be concrete if the state’s actions are to be constrained by the fundamental freedoms protected by the Charter. Abstractly, and intuitively, a complete ban on all gatherings would be maximally effective in preventing the spread of COVID-19, but in human terms, such a ban was neither possible nor desirable. The logical corollary is that permitting any more gatherings than the limits permitted would increase the risk of spreading COVID-19.
[67] But, proportional balancing sets a much more demanding standard in comparing costs and benefits.[83] The assessment is concrete, rather than abstract. How much, practically speaking, did the ban on peaceful assembly mitigate the risk of COVID-19 spread? There is no evidence as to the increase in risk that would have been posed by an exemption for outdoor peaceful assembly or protests that matched the exemption for permitted gatherings.[84]
[68] More particularly, there is no evidence as to the increase in risk posed by the outdoor protests in which Mr. Hillier participated.
[69] Perhaps most importantly, there is no evidence that Ontario ever considered an exemption for peaceful assembly for outdoor political protests. Can the court, in assessing the state’s justification, countenance an outcome in which the state eliminates the free exercise of a fundamental freedom without giving that elimination any actual thought? Such an outcome would be entirely contrary to the purpose of the Charter in protecting the free exercise of fundamental freedoms against the limiting actions of government.
(iii) Has Ontario Struck a Demonstrably Justified Balance?
[70] The application judge considered himself, on the facts and on the reasoning, to be unable to deviate from Trinity Bible Chapel. He erred in so doing. Trinity Bible Chapel is distinguishable. The cases would be analogous if the issue before the court in Trinity Bible Chapel had been an outright ban on religious gatherings. But that was not the case. The issue was whether the actual numerical limits were demonstrably justified taking into account the rights of the appellants under s. 2(a) of the Charter. The motion judge and this court concluded that the limits were justified.
[71] Ontario conceded in the Trinity Bible Chapel appeal that the restrictions on religious gatherings limited the fundamental freedom of religion protected by s. 2(a) of the Charter.[85] This court found that, in applying the Oakes test, the limit was justified under s. 1. First, the limits were directed at a pressing and substantial objective.[86] Second, the gathering limits were rationally connected to the objective because restricting contact “logically reduces the risk of transmission, particularly in congregate settings such as religious gatherings.”[87] Third, the gathering limits were minimally impairing as a “tailored and balanced response to an urgent public health crisis.”[88] Fourth, in balancing the salutary and deleterious effects of the gathering limit on religious freedoms, this court accepted the motion judge’s conclusion that “[r]eligious institutions were affected, but no more than was reasonably necessary and for no longer than was reasonably required.”[89] None of these conclusions are at issue in this case. The limits on religious gatherings were fully justified.
[72] The implication for this appeal is that the court must focus on the limit, or “the infringing measure”, not on the law as a whole.[90] This approach prevents the limit from being crushed under the weight of the law’s benefit.
[73] The application judge’s analysis in this case did not reach the actual limit at issue here – the gathering limits on the fundamental freedom of peaceful assembly under s. 2(c) of the Charter. To repeat, G required the application judge to focus on whether the specific limiting measure was justified, rather than on the law as a whole, but he did not. Instead, he focused on the law’s overwhelming social good in preventing the spread of COVID-19, not on ways in which the fundamental freedom of peaceful assembly might still be accommodated in the delicate task of balancing. This was his error.[91]
[74] Mindful of the problem of incommensurability mentioned above, I conclude that the deleterious effects of the absolute ban on peaceful assembly, particularly outdoor political protests, during the period of April 17, 2021 to May 22, 2021, exceeded the benefits of these particular gathering limits on the spread of COVID‑19. Ontario has failed to demonstrably justify these limits on the peaceful assembly rights of Mr. Hillier under s. 2(c) of the Charter, as required by s. 1. . Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court considers the 'means-ends balancing' element of the Charter s.1 proportionality test:(3) Proportionality between salutary and deleterious effects
(1) General principles
[125] As Favreau J.A. explained in OECTA, at para. 215, the final stage of the Oakes analysis engages a balancing exercise:This last branch of the s. 1 analysis asks whether there is proportionality between the overall effects of the Charter-infringing measure and the legislative objective. The court must turn its mind to the effects of the measure to determine, on a normative basis, whether the infringement of the right in question can be justified in a free and democratic society. This requires a balancing between the measure’s salutary and deleterious effects ... [T]he Supreme Court explained the court’s task in the following terms:It is only at this final stage that courts can transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society “in direct and explicit terms”…. In other words, this final step allows courts to stand back to determine on a normative basis whether a rights infringement is justified in a free and democratic society. Although this examination entails difficult value judgments, it is preferable to make these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision. Further, as mentioned, proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective. [Citations omitted.] [126] The normative and value-laden balancing of the relevant factors is a question of law that is reviewable on a correctness standard. However, to the extent that the assessment of the salutary and deleterious effects of legislation depends on factual findings, the findings made by the application judge must be respected unless they are tainted by palpable and overriding error. . Ontario English Catholic Teachers Association v. Ontario (Attorney General) [proportionality]
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 'proportionality' step of the s.1 Charter 'balancing' test - here after finding a s.2(b) freedom of association violation:(4) Proportionality
[213] Having found that the Act is not minimally impairing, it is technically not necessary to consider whether its salutary effects are proportional to its detrimental effects: Carter, at para. 122.
[214] Nevertheless, dealing with this issue briefly, I note that many of the same considerations that lead me to conclude that the Act is not minimally impairing lead to the conclusion that its detrimental effects outweigh its salutary effects.
(i) General principles
[215] This last branch of the s. 1 analysis asks whether there is proportionality between the overall effects of the Charter-infringing measure and the legislative objective: Hutterian Brethren, at paras. 72-73. The court must turn its mind to the effects of the measure to determine, on a normative basis, whether the infringement of the right in question can be justified in a free and democratic society: Frank, at para. 76. This requires a balancing between the measure’s salutary and deleterious effects: Hutterian Brethren, at para. 100. In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 79, the Supreme Court explained the court’s task in the following terms:It is only at this final stage that courts can transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society “in direct and explicit terms”.... In other words, this final step allows courts to stand back to determine on a normative basis whether a rights infringement is justified in a free and democratic society. Although this examination entails difficult value judgments, it is preferable to make these judgments explicit, as doing so enhances the transparency and intelligibility of the ultimate decision. Further, as mentioned, proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective. ....
(iii) The Act’s salutary effects are not proportional to its deleterious effects
[221] I agree with the application judge that the Act’s salutary effects are not proportional to its deleterious effects, although I arrive at this conclusion through somewhat different reasoning.
[222] The government is responsible for ensuring responsible fiscal management and the delivery of public services to Ontarians. These are core government functions. Ontario put forward some evidence that it would be most prudent to manage potential financial challenges by decreasing the province’s debt load and reducing its spending. Public sector wages are a significant proportion of government spending. The Act would no doubt assist the government in reaching these goals.
[223] However, I cannot accept that the circumstances surrounding the government’s decision to enact the legislation justify its infringement of the Charter. Ontario has not been able to explain why wage restraint could not have been achieved through good faith bargaining. While I accept that Ontario has stated a pressing and substantial objective, in the proportionality analysis, the degree to which the objective is pressing becomes relevant: Oakes, at p. 140. In the absence of evidence establishing a need to proceed with expediency, it is difficult to see how the Act’s benefits outweigh its substantial impact on the respondents’ collective bargaining rights.
[224] Ontario’s argument that s. 2(d) of the Charter is meant to protect the process of collective bargaining and not specific outcomes becomes relevant again. There is no dispute that the government can seek to keep compensation increases to 1% per year or less. The issue becomes the process through which the government arrived at this outcome. In the absence of any evidence for the need for expediency or that the same goal cannot be achieved through collective bargaining, it is hard to understand on what basis the Act’s salutary effects outweigh its deleterious effects.
[225] In contrast, because of the Act, organized public sector workers, many of whom are women, racialized and/or low-income earners, have lost the ability to negotiate for better compensation or even better work conditions that do not have a monetary value. Considering these impacts against the Act’s purported benefits leads me to conclude that, on balance, the Act’s infringement cannot be justified. By imposing a cap on all compensation increases with no workable mechanism for seeking exemptions, the deleterious effects of the Act outweigh its salutary effects.
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