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Charter - s.7 'Life, Liberty and Security of the Person' (3). La Rose v. Canada
In La Rose v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a political plaintiffs' appeal from a trial court's striking of pleadings, here where aboriginal and youths sued the government for causing - and failing to mitigate - climate change.
In these quotes the court considers Charter s.7 ['life, liberty and security of the person'] arguments, particularly the theme of 'positive' s.7 rights - which is greatly hesitated over (and which is perhaps a candidate for 'homelessness' litigation?):IX. Section 7 of the Charter
[89] Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” To establish a breach of section 7, then, claimants must show that the “law interferes with, or deprives them of, their life, liberty or security of the person”, and that this deprivation “is not in accordance with the principles of fundamental justice” (Carter at para. 55; see also Chaoulli at para. 109).
[90] Claimants must also demonstrate a causal connection between the impugned action or law and the prejudice they have suffered (Bedford at para. 75). However, claimants need not demonstrate that the state alone is accountable for the prejudice they have suffered (Bedford at para. 76):A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link. [91] While I will return to the question of causal connection at the conclusion of these reasons when I discuss sufficiency of the pleadings, I want to foreshadow that there is a distinction between sufficient pleading of a causal link and a pre-emptive determination of fact that such a causal link can never be established. Here, the motions judges based their decisions on a pre-emptive determination of fact and in so doing erred.
Characterization of claims/Positive rights
[92] Section 7 and the associated jurisprudence does not confer a right to any particular legislative regime that guarantees or maximizes the life, liberty and security of the person; rather, section 7 protects against the deprivation of these interests. Accordingly, the state has not, so far, been required to “act affirmatively to ensure that each person enjoys a minimum of life, liberty and security of the person” (Kreishan at para. 136; Gosselin at para. 81). To engage section 7, courts have required more than a harm that could be alleviated by state action—there must be a deprivation arising from the state action itself.
[93] It can be discerned from the history of the section 7 jurisprudence that the Supreme Court, indeed all courts, are cautious about opening the door to positive rights claims. Positive rights challenges have been dismissed in a multiplicity of contexts in diverse fora across Canada (PHS at para. 92; Bedford at paras. 60 and 75; Carter at para. 55; Chaoulli at paras. 103-104; Emmett Macfarlane, “Dialogue, Remedies, and Positive Rights: Carter v Canada as a Microcosm for Past and Future Issues Under the Charter of Rights and Freedoms” (2017) 49 Ottawa L. Rev. 107 at 121). They have been dismissed in actions concerning social welfare benefits (Masse v. Ontario (Minister of Community and Social Services), 134 D.L.R. (4th) 20, 1996 CanLII 12491 (ONSCDC) at paras. 73 and 172; McMeekin v. Government of the Northwest Territories, 2010 NWTSC 27, 209 C.P.R. (2d) 243 at paras. 27-31; Lacey v. British Columbia, 1999 CanLII 7023 (BCSC), 1999 CarswellBC 3078 (WL Can) at paras. 4-6; Conrad v. Halifax (County), 1993 CanLII 4577 (NS SC), 124 N.S.R. (2d) 251, 345 A.P.R. 251 (NSSC) at paras. 90-96), health care (Chaoulli at para. 104; Toussaint v. Canada (Attorney General), 2011 FCA 213, [2013] 1 F.C.R. 374 at para. 77, leave to appeal to SCC refused, 34446 (5 April 2012)), autism programs (Sagharian v. Ontario (Education), 2008 ONCA 411, 172 C.P.R. (2d) 105 at paras. 52 and 57, leave to appeal to SCC refused, 32753 (4 December 2008); Wynberg v. Ontario (2006), 2006 CanLII 22919 (ON CA), 269 D.L.R. (4th) 435, 82 O.R. (3d) 561 (ONCA) at paras. 219-220), witness protection (John Doe v. Ontario, 162 C.R.R. (2d) 186, 2007 CarswellOnt 6478 (WL Can) (ONSC) at para. 113, aff’d 2009 ONCA 132), unlawful detention (Good v. Toronto Police Services Board, 2013 ONSC 3026, 43 C.P.C. (7th) 225 at para. 143), refugee asylum claims (Kreishan at paras. 135-141), and climate change (Trans Mountain Pipeline ULC v. Mivasair, 2019 BCSC 50, 427 C.R.R. (2d) 212 at para. 68).
[94] Two recent cases of the British Columbia Court of Appeal exemplify this approach.
[95] Scott v. Canada (Attorney General), 2017 BCCA 422, 417 D.L.R. (4th) 733 [Scott] dealt with a section 7 claim brought by members of the Canadian Forces which alleged that the government’s compensation scheme for injured veterans was insufficient. The Court struck the claim since there was no deprivation imposed by the government—the legislation was just a “benefit-conferring program” (Scott at para. 89). More recently, the British Columbia Court of Appeal struck a claim brought by an individual who alleged that the Minister of Health’s failure to consider his application to access a medical drug violated his section 7 rights. Willcock J.A., writing for the Court, pointed to the consistent line of jurisprudence holding that a government’s failure to provide a financial benefit alone cannot ground a section 7 claim (Chung v. British Columbia (Minister of Health), 2023 BCCA 294, 2023 CarswellBC 2045 (WL Can) at paras. 65-67).
[96] This does not mean that the door to positive rights under section 7 is closed. As early as 2000, the Supreme Court recognized the role of section 7 in reflecting and safeguarding the public’s evolving values (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 188, per LeBel J):We must remember though that s. 7 expresses some of the basic values of the Charter. It is certainly true that we must avoid collapsing the contents of the Charter and perhaps of Canadian law into a flexible and complex provision like s. 7. But its importance is such for the definition of substantive and procedural guarantees in Canadian law that it would be dangerous to freeze the development of this part of the law. The full impact of s. 7 will remain difficult to foresee and assess for a long while yet. Our Court should be alive to the need to safeguard a degree of flexibility in the interpretation and evolution of s. 7 of the Charter. [97] In 2002, in Gosselin, McLachlin C.J. endorsed LeBel J.’s observation. There, she noted that “[o]ne day s. 7 may be interpreted to include positive obligations”, and that “[i]t would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases” (Gosselin at para. 82). The Chief Justice elaborated that the question of whether positive rights arise under section 7 is one that courts must assess based on the case before them (Gosselin at para. 82):The question therefore is not whether s. 7 has ever been — or will ever be — recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards. [98] Rumblings of positive rights have continued to sound since Gosselin. The Court of Queen’s Bench of Alberta, for example, dismissed a claim under section 7 challenging inadequate workers compensation benefits, but noted that interference with economic rights alone could ground a positive rights claim if it were to result in “serious stress, stigma and anxiety that substantially affect a person’s security of the person” (Schulte v. Alberta (Appeals Commission for Alberta Workers' Compensation), 2015 ABQB 17, 605 A.R. 210 at para. 130, aff’d on appeal (without comment on this point) at 2016 ABCA 304, [2017] 3 W.W.R. 694). This Court has as well acknowledged the possibility that section 7 may some day impose positive obligations on the state, and noted that this may arise in the context of climate litigation (Kreishan at para. 139).
[99] There is also a significant body of academic analysis supporting the recognition of positive rights under section 7. Martha Jackman and Bruce Porter, for example, advocate for the recognition of positive rights under the Charter, as it would “ensur[e] effective implementation of international human rights through the interpretation and application of domestic law”, and would allow “Canada’s legal culture [] to better align with the views and expectations of civil society and Indigenous peoples” (Martha Jackman & Bruce Porter, “Social and Economic Rights in Canada” in Peter Oliver, Patrick Macklem, & Nathalie Des Rosiers (eds.), The Oxford Handbook of the Canadian Constitution (New York, Oxford University Press, 2017) at 860; see also Martha Jackman, “Charter Remedies for Socio-Economic Rights Violations: Sleeping Under a Box?”, in Robert J. Sharpe and Kent Roach (eds.), Taking Remedies Seriously (Ottawa: Canadian Institute for the Administration of Justice, 2010) at 284-285).
[100] However, the recognition of positive rights under section 7 is not without critics. James Hendry, for example, argues that the section 7 framework does not lend itself to positive rights, as the rights protected under section 7 are inherently non-comparative and must be determined “at large” (James Hendry, “Section 7 and Social Justice” (2009-2010) 27 N.J.C.L. 93 at 106). Critics also contend that courts are simply not competent to adjudicate the complex policy issues that would follow the recognition of positive rights under section 7 (Colin Feasby, David DeVlieger & Matthew Huys, “Climate Change and the Right to a Healthy Environment in the Canadian Constitution” (2020) 58:2 Alta. L. Rev. 213 at 239).
[101] Regardless of which side of the debate is to be preferred, there is one point on which there is agreement: the line between positive and negative rights is at times difficult to draw. The traditional distinction asserts that positive claims require positive governmental action, whereas negative claims require the government to refrain from acting in some way (Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1 at para. 20 [Toronto (City)]). However, some rights have both positive and negative elements; others have gone further in writing that “no right can exist without some form of corresponding obligation to do or not do something” (Nathalie J. Chalifour & Jessica Earle, “Feeling the Heat: Climate Litigation Under the Canadian Charter’s Right to Life, Liberty, and Security of the Person” (2018) 42 Vt. L. Rev. 689 at 742).
[102] Many rights exist on the margins. Take, for example, the right to a fair trial, which requires the state to refrain from breaching certain procedural guarantees, but also to provide an adequate court system. Consider also the right to accessibility: an individual with disabilities requires an assistive device, but only because the state has constructed inaccessible programs and infrastructure. The right at issue appears positive, but it was only brought about because the state failed to refrain from breaching existing negative rights. (See Sandra Fredman, “Human Rights Transformed: Positive Duties and Positive Rights”, [2006] P.L. 498 at 502; see also Vasuda Sinha, Lorne Sossin, & Jenna Meguid, “Charter Litigation, Social and Economic Rights & Civil Procedure” (2017) 26:3 J. L. & Soc. Pol’y 43 at 60).
[103] This at times false dichotomy has been recognized judicially. Abella J.’s dissent in Toronto (City) noted that “[a]ll rights have positive dimensions since they exist within, and are enforced by, a positive state apparatus” and that “[a]ppropriate verbal manipulations can easily move most cases across the line” (Toronto (City) at para. 153, citing S. F. Kreimer, “Allocational Sanctions: The Problem of Negative Rights in a Positive State” (1984), 132 U. Pa. L. Rev. 1293, at 1325); put otherwise, a right may be seen as negative or positive depending simply on the perspective taken. The majority in Toronto (City) relied on the distinction between state action and state restraint for the purposes of their freedom of expression analysis, but they too acknowledged that the distinction between positive and negative entitlements is “not always clearly made, nor… always helpful” (Toronto (City) at para. 20, citing Haig v. Canada, [1993] 2 S.C.R. 995, 1993 CanLII 58 (SCC)).
[104] Mactavish J. (as she then was) acknowledged the difficulty in characterizing a claim as either “exclusively positive or exclusively negative” in the context of a section 7 analysis in Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267 at para. 520 [Canadian Doctors]. Mactavish J. noted that “section 7 jurisprudence has demonstrated that the fact that a particular claim may involve a request that the government spend money in a particular way is not necessarily fatal to the claim” (Canadian Doctors at para. 522). Indeed, the Supreme Court has found section 7 rights violations within this blurred zone. For example, the right to state-funded counsel was recognized in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, 1999 CanLII 653 (SCC); and the right to be exempted from prohibitive legislation in PHS. Both may be conceptualized depending on the perspective taken, as positive rights claims.
[105] Here, the motions judges erred in striking the claims on the basis that they were positive rights claims. The Dini Ze’s pleadings speak to a direct deprivation of their security of the person. They describe, in considerable detail, the effects of climate change on their food security, culture and economies. They attribute this to specific state action including deficient legislative standards and permissive licensing of GHG-emitting projects. Their claim speaks to a current and ongoing deprivation.
[106] The youth appellants’ claim, in contrast, is less specific than that of the Dini Ze’. The youth appellants’ claim speaks prospectively; it speaks to the consequences of permissive regulation in the future, and has at its foundation the premise that the plaintiffs have a Charter protected right to live in a world with a stable climate system. However, the youth appellants’ claim, read generously, does refer to deprivations: Canada has consistently missed the emissions targets it has set for itself under the Paris Agreement (enshrined domestically in the Canadian Net-Zero Emissions Accountability Act) and is similarly on track to miss its future emissions targets. Canada’s failures are deprivations in that they deprive the appellants of the fruits of Canada’s legislated commitments and compromise the appellants’ section 7 interests.
[107] In Leroux v. Ontario, 2023 ONCA 314, 481 D.L.R. (4th) 502 [Leroux] the Ontario Court of Appeal allowed a section 7 claim to proceed to trial, even though it “sail[ed] close to asserting a positive constitutional obligation”. The claimants in Leroux alleged that the government’s inadequate provision of supports for persons with developmental disabilities violated section 7. The Court distinguished the claim from other failed positive rights claims under section 7 since the claimants in this case had already been approved for government support which was effectively denied in its implementation.
[108] In allowing the claim to go forward, the Court cited the principle that claims should be struck with care, noting that this principle may apply with particular force “for novel Charter claims that explore the scope of a right, as such claims often require a trial and an evidentiary record to fully understand the nature of the impugned state action and the harms experienced by claimants” (Leroux at para. 86, citing Lorne Sossin and Gerard J. Kennedy, “Justiciability, Access to Justice and the Development of Constitutional Law in Canada”, (2017) 45:4 Fed. L. Rev. 707, at 719).
[109] I return at this point to where I began. The claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries. The argument is novel, but it is not doomed to fail. Courts should be cautious in striking claims at an early stage. It is trite law that novel but arguable claims should be allowed to proceed so as to not inhibit the development of the common law (Imperial Tobacco at para. 21). The law is not static and unchanging—actions that were deemed hopeless yesterday may succeed tomorrow. It is for this reason that courts must be cautious about striking claims and err on the side of allowing novel but arguable claims to proceed.
[110] The necessary element of deprivation in section 7 has been found in circumstances where legislation or executive actions create or exacerbate a risk to life, liberty or security of the person (Bedford; PHS). In essence, this is the theory, or one of the theories, that underlies the appellants’ case, and the analogy to the case at bar is obvious. The appellants argue that the legislation and Orders in Council, permitting, as they do, GHG emissions, deprive them of their section 7 interests. Just as the prostitution provisions of the Criminal Code made the lives of the sex-workers more precarious, so too does the suite of federal laws challenged here. The Federal Court therefore erred in reasoning that the appellants’ section 7 claims were positive rights claims and accordingly had no reasonable prospect of success.
[111] Recently, in Mathur 2023, the Ontario Superior Court dismissed a section 7 challenge to a target set pursuant to Ontario legislation that seeks a 30% reduction in GHG emissions from 2005 levels by 2030. The applicants argued that this target was not high enough to avoid the severe effects of climate change. The Court ruled that, even if the target had deprived the applicants of their rights to life, liberty and security of the person, these deprivations would not have been contrary to the principles of fundamental justice (Mathur 2023 at para. 171). More specifically, the Court found that Ontario’s target was not arbitrary in relation to the law’s objective of reducing GHG emissions, nor was it disproportionate relative to the law’s objective of reducing GHG emissions. The applicants in fact agreed with the legislation’s objective, and instead argued that Ontario should pursue its goal of addressing climate change more aggressively (Mathur 2023 at paras. 162 and 171).
[112] Importantly for the purpose of these reasons, the Court arrived at this conclusion after a trial. The question there was whether the applicants had in fact made out their section 7 claim on the merits, not whether a section 7 claim of this nature should be allowed to be argued. The Court was able to apply the elements of a section 7 analysis—nexus, causation, deprivation as well as arbitrariness and proportionality.
[113] The Federal Court erred in presumptively concluding that a causal relationship between the legislation and the deprivation of a section 7 interest is “manifestly incapable of being proven.” As the Mathur 2023 decision demonstrates, the arguments are not fanciful or incapable of being assessed against a body of evidence. It is sufficient to say, for the purposes of these appeals, that while the challenged law or government action need not be the sole or dominant course of the alleged deprivation, there must be a real as opposed to speculative link (Bedford at para. 76). While this link may not be made on the pleadings as they stand, this does not mean that the claim under section 7 is so doomed to fail that it cannot proceed in any renewed form. I will address this at the conclusion of these reasons.
[114] There is no reason to conclude that harms flowing from climate change and climate-related legislation are manifestly incapable of proof, as did the Federal Court. While the pleadings require amendment, there is a vast body of scientific knowledge dealing with climate change, GHG emissions, and their consequences on human health and the environment. These harms have been acknowledged by the Canadian government itself: the Canadian Net-Zero Emissions Accountability Act states in its preamble that “climate change poses significant risks to human health and security” and that “the science clearly shows that human activities are driving unprecedented changes in the Earth’s climate”. The Canadian Net-Zero Emissions Accountability Act goes on to enshrine certain GHG targets, including net-zero emissions for 2050 (Canadian Net-Zero Emissions Accountability Act, s. 6). One of the purposes of the Act is stated in section 4 to be “requir[ing] the setting of national targets for the reduction of GHG emissions based on the best scientific information available”.
[115] I return to Gosselin, where the Court held that a positive rights claim could be advanced in “special circumstances” (at para. 83). There is no guidance in the jurisprudence as to what those circumstances might be. The appellants contend that the circumstances before the Court constitute special circumstances warranting a novel application of section 7 and that the Federal Court erred in closing the door on this argument.
[116] Climate change’s current and potential effects are widespread and grave, they include loss of land and culture, food insecurity, injury and death. In the GGPPA References the Supreme Court noted that climate change is an existential challenge, a threat of the highest order to the country, and to the future of humanity which cannot be ignored (GGPPA References at para. 167). If these do not constitute special circumstances, it is hard to conceive that any such circumstances could ever exist; however this remains to be determined by the trial judge.
[117] I have explained the analytical limits of positive/negative rights dichotomy and why the claims before us can be taken to assert elements of both. Subject to what follows, there is, nevertheless, a sufficient pleading of a section 7 violation in its orthodox understanding to survive a motion to strike. Where novel Charter claims test the boundaries of a right, such claims may require a trial in order to understand the nature of the legislation, executive action or regulation and the harm experienced by claimants. This is one of those cases.
[118] This is not to say that all section 7 claims require a trial; far from it. Pleadings that use section 7 to address broad, systemic social problems detached from a particularized legislative scheme constituting the deprivation, such as in Tanudjaja, remain the proper target of a motion to strike. Here, in contrast, the deprivations of the section 7 interests are anchored in legislation, Orders in Council and executive action, albeit obscured by an effusive and broad pleading. . Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court briefly reviews some of a parent's Charter s.7 rights:Alleged breach of the Respondent’s s. 7 Charter right
[39] It is also plain and obvious that there is no reasonable cause of action for breach of s. 7 of the Charter. On this issue the Respondent asserts that “at all material times, her right to life, liberty and security of the person pursuant to s.7 of the Charter encompassed a right to a protected sphere of parental decision-making in relation to [F.K.’s] well-being, including but not limited to a right to make decisions concerning [F.K.’s] health and well-being.” In support of this claim she relies on her custodial rights and her right to make decisions about her son’s education.
[40] The Supreme Court has recognized that the right to liberty in s. 7 includes “a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children”: B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, at p. 372. However, that sphere has only been recognized in the context of “fundamental matters” such as decisions regarding medical treatment or “where state compulsions or prohibitions affect important and fundamental life choices”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R. 307, at para. 49. It has not been extended to include the right to choose one’s child’s school, let alone to some emotional upset or complaints about day-to-day supervision of a child at school: Jackson v. Toronto Catholic School Board (2006), 214 O.A.C. 39, 2006 CanLII 23951 (Div. Ct.), at para. 68.
[41] The liberty interest of a parent in s. 7 is not a wide-open freedom that is engaged every time a teacher or other state actor does something that relates to a child which the parent dislikes. Children have rights too, and teachers and principals have obligations towards them. It would trivialize the Charter to say that a parent’s s. 7 rights are infringed every time a school has been slow, or failed, to provide information to a parent, or because the school restricted a parent’s access to their child during the school day. That is not to say that deliberate and egregious wrongful conduct respecting a child could never amount to a s. 7 breach, but such facts simply do not arise on the pleading in this case. . R. v. Black
In R. v. Black (Ont CA, 2023) the Court of Appeal considered a Charter s.7 criminal appeal, alleging a police beating. The 'justified police force' provisions of CCC 25(4) were pivotal ['Protection of persons acting under authority - When Protected']:[3] The appellant claimed that he suffered the injuries when he was beaten by the police and that the injuries suffered by him constituted a breach of his rights under s. 7 of the Charter. The appellant further argued that the police conduct was sufficiently egregious to warrant a stay of the criminal proceedings brought against him. ...
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The Section 7 Claim
[5] A police officer is justified in using force intended to cause grievous bodily harm in only limited circumstances: Criminal Code, s. 25(4). In essence, the officer must believe, on reasonable grounds, that the use of that force was necessary to protect the officer or others from grievous bodily harm: R. v. Nasogaluak, 2010 SCC 6, at para. 34. The ultimate determination of whether an officer’s use of force was justified under s. 25(4) of the Criminal Code is a question of law reviewable on a correctness standard. However, in deciding that question of law, this court must accept the relevant findings of fact made by the trial judge unless those findings are tainted by a material misapprehension of evidence, a failure to consider relevant material evidence, or are unreasonable: R. v. Shepherd, 2009 SCC 35, at para. 20.
[6] The trial judge concluded that, on the facts as he found them, the police actions were justified under s. 25(4) of the Criminal Code. Counsel for the appellant submits that the trial judge’s factual findings are premised on a material misapprehension of the evidence and that this court is not bound by those findings.
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[15] Moving from the trial judge’s factual findings to the application of the law to those findings, we are satisfied that, on the facts as found by the trial judge, the officers were justified under s. 25(4) in using the force they used. The relevant facts include:. When the police attended at the residence to execute the search warrant, they had reasonable grounds to believe that one of the occupants was a violent criminal in possession of firearms;
. Before the police entered the premises, they saw the appellant running around inside. He appeared to be in a panic after seeing the police presence;
. The police had reasonable grounds to believe that the person running around in the apartment was the person known to them to have a criminal record and carry firearms;
. The police first tasered the appellant in response to the appellant kicking one of the officers and refusing to cooperate;
. After the first tasering, it was reasonable for the police to believe that the person in the bathtub was carrying a firearm and continued to pose a danger to them; and
. The force applied by the officers after the first tasering amounted to reasonable efforts to gain control of the appellant and protect themselves should the appellant have been armed. [16] On the trial judge’s findings, the actions of the police officers fall within the justification defence created by s. 25(4). There was no breach of s. 7 of the Charter, and no basis upon which to stay the proceedings. . Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.
In these quotes the court considers the application of Charter s.7 ['life, liberty and security of the person'] to the administrative regime governing immigration consultants, here on the issue of 'vagueness':(3) Does the LSO’s restriction on the Applicant’s scope of practice infringe his rights under Charter s. 7?
[118] Charter s. 7 provides:Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [119] The Applicant argues that the principles of fundamental justice require that paralegals be allowed to practice the full scope of immigration law. He argues that “vulnerable and marginalized people” are being denied access to justice because the LSO has eliminated “an affordable option for representation on the full gamut of immigration applications”.
[120] The Applicant relies on no legal authority for his position, nor does he set out any facts in his affidavit to support his s. 7 claim.
[121] Charter s. 7 involves a two-step process. First, it must be determined whether there has been a deprivation of the right to life, liberty or security of the person. Secondly, the person seeking to establish the violation must establish that the deprivation of the right is not “in accordance with the principles of fundamental justice”. The onus is on the applicant to prove both the deprivation and the breach of fundamental justice: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 3; Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA), at para. 45.
[122] The Applicant’s submissions do not explain how he has been deprived of the right to life, liberty or security of the person. He appears to suggest that any limit on his scope of practice as a paralegal is a limit on his liberty.
[123] This suggestion is inconsistent with the Court of Appeal’s decision in Mussani, at paras. 41 and 43, which held that the Charter does not protect the right to practice a profession.
[124] Nor has the Applicant established that By-Law 4 is inconsistent with any principle of fundamental justice.
[125] In Canadian Foundation for Children, the Supreme Court of Canada summarized the three criteria that must be met to qualify as a principle of fundamental justice, at para. 8:Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria... First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters” ... Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice” … The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. [Citations omitted.] [126] The Applicant’s factum does not identify any principle of fundamental justice.
[127] In oral argument, the Applicant took the position that By-Law 4 was void for vagueness.
[128] Vagueness is a principle of fundamental justice. As the Court of Appeal stated in Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at para. 37:Vagueness describes a lack of precision in legislation that leaves its meaning and application unacceptably uncertain. Legislation should provide fair notice to citizens as to what conduct is prohibited, appropriate limits on the discretion of law enforcement officials and a proper basis for coherent judicial interpretation. A law that implicates the s. 7 right to life, liberty and security of the person will be struck down as being inconsistent with the principles of fundamental justice if it is not sufficiently intelligible to meet these objectives. [129] In R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, the Supreme Court of Canada held, at para. 42, “the threshold for finding a law vague is relatively high”, and recognized that vagueness requires unintelligibility, not simply uncertainty. A law should not be declared void simply because it requires judicial interpretation in order to determine its application to a particular situation.
[130] In Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, the Supreme Court stated, at para. 79:Where a court is faced with a vagueness challenge under s. 7, the focus of the analysis is on the terms of the impugned law. The court must determine whether the law provides the basis for legal debate and coherent judicial interpretation. As I stated above, the first task of the court is to develop the full interpretive context surrounding the law, since vagueness should only be assessed after the court has exhausted its interpretive function. If judicial interpretation is possible, then an impugned law is not vague. A law should only be declared unconstitutionally vague where a court has embarked upon the interpretive process, but has concluded that interpretation is not possible. In a situation, such as the instant case, where a court has interpreted a legislative provision, and then has determined that the challenging party’s own fact situation falls squarely within the scope of the provision, then that provision is obviously not vague. [131] In the present case, the legal debate revolved around the word “proceeding” in s. 6(2) of By-Law 4. Two possible interpretations were advanced by the parties, and this Court has found in favour of one. The By-Law clearly provides the basis for legal debate and coherent judicial interpretation. Having “embarked upon the interpretive process”, and provided an interpretation of s. 6(2) of By-Law 4, and determined that the Applicant’s proposed conduct is not permitted, “that provision is obviously not vague”.
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