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Charter - s.1 Oakes Test - Pressing and Substantial Objective

. Ontario English Catholic Teachers Association v. Ontario (Attorney General) [pressing and substantial objective]

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 'pressing and substantial objective' step of the s.1 Charter 'balancing' test - here after finding a s.2(d) freedom of association violation:

[158] The Supreme Court has explained that the objective of a law must not be stated in too general terms because, otherwise, “it will provide no meaningful check on the means employed to achieve it: almost any challenged provision will likely be rationally connected to a very broadly stated purpose”: R. v. Moriarity, 2015 SCC 55, [2015] S.C.R. 485, at para. 28; see also Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 46. On the other hand, an articulation that is too narrow “may merely reiterate the means chosen to achieve it”: Frank, at para. 46. On this basis, the Supreme Court has stated that a law’s purpose should be “both precise and succinct” and distinguished from the means chosen to implement it: Moriarity, at para. 29; see also Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, at para. 23.

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(i) General principles

[168] As a general principle, Ontario must establish that the Act’s objective is “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 352. This ensures that “objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection”: Oakes, at p. 138.

[169] As this court stated in Gordon, “[t]his stage … is not usually an evidentiary contest. Rather, ‘the proper question at this stage of the analysis is whether the Attorney General has asserted a pressing and substantial objective’ and a ‘theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis’”: at para. 196 (emphasis in original), citing Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 25-26. The court also noted, at para. 199, that “[m]ost s. 1 Charter cases move quickly past the first stage of determining whether a government’s objectives were pressing and substantial.”

[170] In Gordon, at para. 224, this court further emphasized the deference courts owe governments in setting their policy objectives, specifically in the context of labour legislation:

Courts conducting full-scale Oakes assessments in relation to labour legislation are obliged to delve deeply into government fiscal policy and its determination in highly sensitive areas. Judicial probing will lead inevitably into real tensions about the respective roles of Parliament and the judiciary in governing Canada, since s. 1 of the Charter places courts in the role of final arbiter of constitutional rights. Courts have recognized, through a series of limiting principles, that judicial deference to government policy determinations is prudent as a matter of institutional capacity and the constitutional legitimacy of judicial review. In general terms, judges ought not to see themselves as finance ministers.

[171] The court went on to list the limiting principles as: 1) the separation of powers between legislatures, the courts and the executive; 2) the recognition of the respective institutional capacities of each branch; and 3) the core competencies of each branch, including the government’s core competency in determining economic policy, budgeting decisions, the proper distribution of resources in society, labour relations regulation and how best to respond to situations of crisis. Regarding these core competencies, the court observed, at para. 234, that “most importantly, it is a core function of government to provide leadership in times of crisis, when something must be done to protect the common good.” Further, when complex policy issues are at stake, the court should refrain from second-guessing, in hindsight, the legislatures’ policy decisions: Gordon, at para. 293.

[172] Despite the direction to defer to legislatures’ policy decisions, especially in matters involving decisions related to their core competencies, this court in Gordon nevertheless noted that “deference never amounts to submission, since that would abrogate the court’s constitutional responsibility…. ‘The role of the judiciary in such situations lies primarily in ensuring that the selected legislative strategy is fairly implemented with as little interference as is reasonably possible with the rights and freedoms guaranteed by the Charter’”: at para. 236, citing PSAC v. Canada, 1987 CanLII 89 (SCC), [1987] 1 S.C.R. 424, at p. 442, per Dickson C.J. (dissenting in part).

[173] In addition, as discussed more fully below, the Supreme Court has consistently stated that concerns over managing a limited budget cannot normally serve as a free-standing pressing and substantial objective and that attempts to justify Charter right infringements based on budgetary constraints will be approached with strong skepticism: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 109; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 72; Health Services, at para. 147; and Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 153.

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(iii) The Act’s objective is pressing and substantial

[181] In my view, the application judge erred in his approach to the analysis of whether Ontario had posited a pressing and substantial objective because he failed to give sufficient deference to the legislature’s policy objectives. This is not a case in which the government’s only rationale for the policy was a desire to better manage its finances. Rather, based on various information about its deficit and economic forecasts, the government concluded that any interest rate increase could lead to financial difficulties and therefore sought to proactively avert a potential fiscal crisis. Indeed, as Dr. Dodge explained, the province was facing a growing gap between its spending and revenues, resulting in increasing debt and debt service charges. Borrowing to finance the ongoing deficit threatened the province’s fiscal sustainability by reducing the scope of traditional fiscal stimulus to respond to changes in the business cycle, increasing the risk premium on the province’s debt, and forcing the province to spend more of its revenue on the interest costs of the debt. Managing these fiscal and budgetary concerns is one of government’s core responsibilities. As held in Gordon, the court should defer to these types of policy objectives.

[182] While I appreciate that the Supreme Court has warned that courts should treat fiscal rationales as constitutionally suspect, these are ultimately matters of degree. Fiscal prudence on its own may be constitutionally suspect. However, where fiscal prudence arises from the government’s determination that it faces a real potential for fiscal crisis, the court should not engage in an overly technical analysis of the economic evidence and should refrain from analyzing subsequent savings or spending policies to assess the credibility of the government’s stated objective. Governments are entitled to set policy objectives and one of their core areas of policy-making is fiscal and budgetary. If the government can state a pressing and substantial objective that is rooted in its evidence, the court should defer to that policy choice. As held in Gordon, at para. 242, “the court should generally accept Parliament’s objectives at face value, unless there is an attack on the good faith of the assertion of those objectives or on their patent irrationality”. This does not mean that the other branches of the Oakes test will be met, but governments should be granted a generous margin for determining when and how to address and avoid a potential fiscal crisis.

[183] Accordingly, contrary to the application judge’s finding, I accept that Ontario has put forward a pressing and substantial objective in support of the Act.