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Charter - Evidence

. R. v. Doad

In R. v. Doad (Ont CA, 2023) the Court of Appeal cited a case on when evidence is obtained in a manner that breaches the Charter:
[7] On the issue whether the trial judge erred in finding that the seized and discarded items sought to be introduced into evidence were not “obtained in a manner” that breached the Charter, using an R. v. Pino analysis, 2016 ONCA 389, 130 O.R. (3d) 561, we are not persuaded that the trial judge made any such error.
. Ontario Teacher Candidates’ Council v. Ontario (Education)

In Ontario Teacher Candidates’ Council v. Ontario (Education) (Ont CA, 2023) the Court of Appeal considered (an allowed) a Crown appeal of a Charter s.15 declaration against particular 'Math Proficiency Tests' for school teachers on ground of racial discrimination, here on failing the preliminary Charter s.15 onus for inadequate evidence:
[7] The July 2021 Data before the Divisional Court provided a preliminary and incomplete basis for assessing the impact of the MPT on entry to the teaching profession. Candidates who had not passed the MPT could rewrite the test an unlimited number of times, and fewer than half of the candidates who would eventually attempt the MPT in 2021 had done so by July 26, 2021. This was an insufficient evidentiary record that failed to discharge the respondents’ onus under s.15(1) of the Charter.


[10] In short, I am unable to conclude, based on the record before this court, that the MPT has, or will have, a disproportionate impact on the entry to the teaching profession by racialized teacher candidates.

[11] I further find that the MPT is not discriminatory by reinforcing, perpetuating or exacerbating disadvantages distinctly experienced by racialized candidates. I accept the Divisional Court’s finding that there is a significant “diversity gap” in the teaching profession in Ontario. But the uncontradicted expert evidence is that the MPT is designed to test teacher candidates’ knowledge of mathematical ideas that any individual who has completed a high school level education could reasonably be expected to understand. This opinion is confirmed by the fact that over 98% of teacher candidates who attempt the test multiple times (including over 98% of racialized candidates who do so) successfully pass the test. Moreover, in developing the MPT, the EQAO was alive to potential equity concerns associated with a standardized teacher competency test and reviewed all MPT questions for bias and sensitivity to equity issues.

[12] I would therefore hold that the Divisional Court erred in finding that the MPT violated s. 15(1) of the Charter and would set aside the Court’s order on that basis. I do not find it necessary to consider whether, had I found a Charter s. 15 violation, any such breach could have been justified pursuant to s. 1.


(2) The Divisional Court’s Reasons

[52] The Divisional Court first considered whether the appellants had shown that the MPT infringes s. 15 of the Charter.

[53] Relying on the Supreme Court’s decision in Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, the Divisional Court indicated that in order to show a prima facie breach of s. 15, an applicant must show that the law or state action:
(i) on its face or in its impact creates a distinction based on enumerated or analogous grounds (“Step 1”); and

(ii) imposes burdens or denies benefits in a manner that has the effect of reinforcing, exacerbating or perpetuating disadvantage (“Step 2”).
[54] The Divisional Court noted that Fraser confirms that s. 15 protects against adverse impact discrimination, which occurs when neutral laws have a disproportionate impact on members of enumerated or analogous groups. Fraser also provided guidance as to the type of evidence that would be helpful in proving a disproportionate impact on members of a protected group, including evidence about the circumstances of the claimant group as well as evidence about the results produced by the challenged law. This could include statistical evidence showing a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance. There is, however, no universal measure for what level of statistical disparity is necessary to demonstrate disproportionate impact and the court should not craft rigid rules on this issue.



(1) Governing Principles

[66] As the Divisional Court explained, it is well established that there are two requirements that must be satisfied by a claimant seeking a finding that a challenged law or state action infringes s. 15(1) of the Charter:
(i) the challenged law or state action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground; and

(ii) the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating or exacerbating disadvantage: Fraser, at para. 27; Ontario v. G, 2020 SCC 38, 451 D.L.R. (4th) 541, at paras. 40 to 42; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at paras. 28, 188.
[67] Where the claimant alleges that a law which is neutral on its face violates s. 15 because of its adverse effects or impacts, the claimant must show that the law has a “disproportionate impact” on members of a protected group. Such a disproportionate impact can be proven in different ways, including if there are clear disparities in how a law affects the claimant’s group as compared to other comparator groups: Fraser, at paras. 62-63.

[68] The Supreme Court has resisted crafting rigid rules on this issue, other than affirming that the goal of statistical evidence is ultimately to establish “a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance”: Fraser, at para 59. At the same time, the Court has cautioned about the potential shortcomings of statistical evidence, noting that such evidence may be unreliable: Fraser, at para 60.

[69] Step 2 of the s. 15 inquiry, whether the distinction imposes a burden or denies a burden in a discriminatory manner, will be satisfied if the challenged law creates a distinction that reinforces, perpetuates or exacerbates a disadvantage that exists independently of the impugned distinction: Quebec (Attorney General) v. Alliance du personnel professional et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at paras. 25-28. Evidence that a law is based on stereotypes or “prejudicial notions” about members of protected groups, or that it withholds access to benefits or imposes burdens arbitrarily, are relevant considerations, but need not be proven in order to establish discrimination: Sharma, at para. 53.
At paras 81, 86-88 and 96-103 the court addressed the evidentiary needs of Charter cases, particularly in statistically-based cases:
[81] A sufficient evidentiary record is not a mere technicality. It is essential in all cases and particularly in constitutional litigation, which frequently engages concepts and principles that are of fundamental importance to Canadian society, and which may profoundly affect the lives of Canadians: MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at pp. 361-62. ...


[86] Moreover, the relatively modest difference in the MPT success rate for racialized as compared with White candidates is far smaller than the disparities that have been found in the past to constitute a “disproportionate impact” on a protected group for purposes of analysis under s.15 of the Charter.

[87] For example, in the oft-cited U.S. Supreme Court case of Griggs v. Duke Power Co., 401 U. S. 424 (1971), the requirement that employees have a high school diploma was satisfied by 34% of White employees but only 12% of Black employees, while the requirement to pass standardized tests resulted in 58% of those who identified as White passing the tests, as compared with only 6% of Black identifying individuals. The aerobic fitness requirement in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), could be satisfied by 65 - 70% of men but only 35% of women. In Fraser, the failure of the RCMP’s pension plan to grant job-sharers the ability to buy-back full-time pension benefits disproportionately affected women, since 100% of the participants in the job-sharing program between 2010 and 2014 were women.

[88] In each of these cases, there was what Abella J. described in Fraser (at para. 63) as “clear and consistent statistical disparities in how a law affects the claimant’s group” sufficient to establish a disproportionate impact on the protected group.


(4) The Respondents Have Not Established that the MPT is Discriminatory, by Having the Effect of Reinforcing, Perpetuating or Exacerbating Disadvantage

[96] Although not strictly necessary to dispose of this appeal, I also find that, based on the record before the court, the respondents have not established that the MPT was discriminatory, in the sense that it demonstrably perpetuated, exacerbated or reinforced the existing disadvantage of racialized teachers in Ontario.

[97] I accept the finding of the Divisional Court that there is a significant “diversity gap” in the teaching profession in Ontario, such that 26% of Ontario students are racialized but only 13% of teachers are racialized. I also accept the Divisional Court’s finding that racialized students, in particular Black and Indigenous students, benefit and perform better when they have racialized teachers. As the Divisional Court noted, a lack of role models in the education system creates a vicious cycle, since students, who do not see themselves represented, do not aspire to become teachers.

[98] Nevertheless, despite the clear evidence of disadvantage associated with their race experienced by the claimant group at all stages of their education, I am unable to conclude, based on the record before the court, that the MPT would reinforce, perpetuate or exacerbate that disadvantage.

[99] Ontario argued that it is not discriminatory to require professionals to demonstrate competence in a subject needed to properly perform their jobs, nor is it a disadvantage. Under step two of the s. 15(1) inquiry, that proposition depends on looking at the actual situation of the claimant group and the potential of the law to worsen their situation: Sharma, at paras. 52, 196 quoting Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 37.

[100] In this case there was expert evidence from Dr. Reid that high-stakes teacher testing has detrimental effects on racial diversity within the teaching population in the U.S. and the U.K. The EQAO literature review revealed a similar concern. However, the EQAO was cognizant of the potential equity concerns associated with a standardized teacher competency test and proceeded with them in mind. To attempt and redress the potential inequities, all the questions on the MPT were screened for bias and sensitivity to equity issues. This resulted in a number of substantive adjustments to the content of the test. For instance, the EQAO allowed more external entities to administer the MPT and altered the assessment format from traditional multiple choice to other close-ended questions, such as drag-and-drop and list ordering problems. It also lowered the difficulty level of the test and sourced the math component for the MPT from the question bank used to test students in Grades 3 to 9, rather than the initially agreed upon Grades 3 to 11 difficulty level. The student math question banks had already gone through an initial review factoring in equity issues. Further, teacher candidates who would become teachers of Native Languages only were given an exemption. These substantive changes to the MPT are relevant to a key issue in step two of the s. 15(1) analysis, namely, whether the MPT requirement responds to the actual capacities and needs of racialized teacher candidates: Taypotat, at para. 20.

[101] Moreover, the frequent administration of the MPT to allow multiple retakes, coupled with only informing the Registrar when a candidate successfully completes the MPT, takes into account the needs of those candidates who may not pass on a first attempt. It must be borne in mind that the MPT is based on questions drawn from EQAO exams administered to Ontario students in grades 3, 6 and 9. It is Dr. Kajander’s uncontradicted expert opinion that the MPT tests mathematical ideas that any individual who has completed a high school level education in Ontario could reasonably be expected to be able to understand. Dr. Kajander’s opinion is supported by the fact that over 98% of candidates who attempted the MPT multiple times in 2021 (including over 98% of racialized candidates who did so) successfully passed the test.[25]

[102] Finally, I note that over the course of 2021, teacher candidates and faculties of education in Ontario were adjusting to the introduction of the MPT by introducing or expanding math instruction within the B. Ed. curriculum. These adjustments can be reasonably expected to improve the mathematical knowledge of teacher candidates in the future, particularly amongst those who may have previously been math-avoidant. It is therefore not unreasonable to expect even higher success rates on the MPT if it were to be administered in future years.

[103] The Divisional Court erred in law by relying on general evidence on standardized testing without regard to the fuller context of the content of the MPT and its administration, as is required at step two of the s. 15(1) inquiry. Had it done so, it would have found insufficient evidence to support a breach of the claimants’ s. 15 rights.
. Canada (Public Safety and Emergency Preparedness) v. Ewen

In Canada (Public Safety and Emergency Preparedness) v. Ewen (Fed CA, 2023) the Federal Court of Appeal considered an unusual appeal from interlocutory orders that granted an interim stay of an immigration removal in order to receive the written submissions on court-initiated Charter issues.

In this quote the court considers the adequacy of an evidentiary record to determine issues, here Charter s.15 issues:
[26] In the present case, the requisite elements to determine a Charter issue were absent:
There was no statement of claim or notice of application alleging a Charter breach and pleading the required elements to which the appellant could respond;

There was no evidence before the Federal Court from the respondent respecting an alleged breach of his section 15 Charter rights;

The respondent did not raise the issue when the Federal Court asked if the parties had any preliminary issues, nor did he seek a declaration of a breach or a remedy under subsection 24(1) of the Charter; and

There was no opportunity to file evidence or to cross-examine.
[27] From the very early cases dealing with Charter issues, the Supreme Court has made it crystal clear that courts must not resolve them in a factual vacuum. As the Court stated in Mackay v. Manitoba, [1989] 2 S.C.R. 357, 1989 CanLII 26 (S.C.C.) at p. 361 [Mackay], “[t]o attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions”. See also: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 1986 CanLII 12 (S.C.C.) at pp. 762, 767-768; Konesavarathan v. University of Guelph Radio, 2020 FCA 148 at para. 12; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262 at para. 67. It is for a claimant to demonstrate, through evidence, that there is a nexus between government action and an alleged section 15 infringement.
. R. v. Bertrand Marchand

In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].

At paras 114-121, 124-133 and 148-152 the court sets out it's Charter s.12 'reasonably foreseeable scenarios', whereby the court explores hypothetical scenarios in order to examine constitutionality. This is a relatively new - an essentially 'evidentiary' technique - that the court allows in Charter s.12 cases.

. Friedman v. Canada (National Revenue)

In Friedman v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the role of adjudicative facts in Charter cases:
[35] The jurisprudence is clear (and abundant) that courts should not decide constitutional cases in a factual vacuum. This principle finds recent expression in Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 at para. 22 where the following appears:
Where a person challenging a law’s constitutionality fails to provide an adequate factual basis to decide the challenge, the challenge fails. As Cory J. put it on behalf of the Court in MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at p. 366, “the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position”.

(emphasis in the original)
[36] That said, in an early Charter case, the Supreme Court left open the possibility that a finding of invalidity could be made on the face of the statute or provision:
However, the principle I am discussing is not absolute. There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter and might perhaps be struck down right away; see Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 CanLII 32 (SCC), [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases are exceptional.

Manitoba (A.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (S.C.C.), [1987] 1 S.C.R. 110 at para. 50
[37] One of the reasons that such cases are exceptional is that an apparent conflict between legislation and the Charter may be capable of resolution using the tools available in Charter litigation. This issue was considered in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 [Reference re Same-Sex Marriage], a reference as to the constitutionality of the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes (Same sex reference). One of the arguments raised against the proposed legislation was that religious officials would be compelled to perform same-sex marriages contrary to their religious beliefs which would conflict with same-sex couples’ right to be free from discrimination. The Supreme Court dealt with this as follows:
This leaves the issue of whether the Proposed Act will create an impermissible collision of rights. The potential for a collision of rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, at paras. 73-74. In both steps, the Court must proceed on the basis that the Charter does not create a hierarchy of rights (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877) and that the right to religious freedom enshrined in s. 2(a) of the Charter is expansive.

Reference re Same-Sex Marriage at para. 50
[38] The result is that legislation which, on its face, contains Charter violations may yet be found to be constitutional on the basis of contextual facts and the balancing of interests pursuant to section 1 of the Charter. All this to say that the possibility of fact-free determinations of constitutional invalidity is extremely limited.


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Last modified: 01-12-23
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