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Charter - 'Values'

. Singh Brar v. Canada (Public Safety and Emergency Preparedness)

In Singh Brar v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2024) the Federal Court of Appeal dismissed a request to 'de-list' the appellant from a 'no-fly list' under the Secure Air Travel Act.

Here the court considers Charter 'values':
[65] The appellants also submit that the Federal Court (and the Minister for that matter) failed to consider the appellants’ "“Charter values”", in particular the values surrounding ss. 2, 6, and 7 of the Charter, or, alternatively, considered them improperly: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31.

[66] In its cases, the Supreme Court says that "“Charter values”" are just factors for administrators to take into account in their decision-making. They do not change, supplement or override the written text of the rights and freedoms in the Charter, the written justification provision in s. 1 of the Charter, or the cases decided under the Charter during the past forty-three years. Nor are they putty to be used to fill unwanted gaps in the Charter. Still less can they strike down or change legislation governing an administrator’s decision, or authorize an administrative decision not authorized by the governing legislation: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 16; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1077-1081 S.C.R. Lastly, if "“Charter values”" are to be matters of constitutional import, they must be substantial, well-founded and well-sourced, not just a litigant’s musings about the vibe of the thing. On a number of these points, see Sullivan v. Canada (Attorney General), 2024 FCA 7 at paras. 9-12 and see also Khodykin v. Canada (Attorney General), 2024 FCA 96 at paras. 8-9.

[67] Here, the appellants do not misuse Charter values in the ways just described. However, the values they do articulate suffer from poor definition and vagueness. To the extent the values have the same content as the rights and freedoms under the Charter that the appellants have invoked in this case, I have already found justification under s. 1 of the Charter and consistency with the principles of fundamental justice. And overall, the appellants seem to be using Charter values in this case as a vehicle to quibble about the weight the Minister and the Federal Court gave to certain considerations the appellants wish to stress—an argument foreclosed to them given the standard of review of palpable and overriding error.

[68] In this case, the record, both public and confidential, including the appellants’ submissions, shows that when the Minister and the Federal Court assessed the reasonableness of the listing, they were well aware of the rights, freedoms and interests of the appellants, including anything that might conceivably qualify as "“Charter values”". But they were also aware of the public and confidential evidence, the need to continue the international fight against terrorism, and the imperatives of public safety. In this case, the balance fell in favour of maintaining the listing of the appellants, decidedly so. Here, the Federal Court did not commit any legal error or palpable and overriding error.
. Ontario (Health Insurance Plan) v. K.S.

In Ontario (Health Insurance Plan) v. K.S. (Div Court, 2024) the Divisional Court dismissed an OHIP appeal under Health Insurance Act [s.24(1,4)], where the primary issue was that a "vaginoplasty without penectomy" was "not a listed procedure in the Schedule of Benefits" "and is, therefore, not an insured service."

Here the court sets out basic principles of statutory interpretation, here expressly invoking Charter values:
[20] The basic rule of statutory interpretation is that the words of the legislation must be read in context and in their grammatical and ordinary sense. The words of the legislation must also be interpreted in a manner that is harmonious with the scheme of the Act and regulations, the object of the Act and regulations, and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1, citing E. A. Driedger, The Construction of Statutes (1974), at p. 67. To find an interpretation that is harmonious with the legislative scheme, the court must conduct a “textual, contextual and purposive analysis”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. When the provision in question is precise and unequivocal, courts should give effect to the ordinary meaning of words used. If, however, the words of the provision can support more than one meaning, the court can look to the object, spirit and purpose of the provision as well: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paras. 10 and 47. Finally, if the legislative provision in question is open to different but equally plausible interpretations, the Court should prefer the interpretation that is consistent with Charter values: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.

....

[25] In my view, the Board was correct to find that vaginoplasty without penectomy is “specifically listed” in the schedule of benefits for three reasons. First, the Board’s interpretation is consistent with the grammatical and ordinary meaning of the relevant provisions. Second, the Board’s interpretation is consistent with the Legislature’s intention. And third, if there is any ambiguity in the language of the provision, the Board’s interpretation is consistent with Charter values.

....

c. The Board’s interpretation is consistent with Charter values

[42] Given my conclusion that the Board’s interpretation is correct based on a plain reading of the Schedule of Benefits, I do not need to address the Charter arguments made by K.S. and supported by the intervener. However, if there was an ambiguity in the language of Part B of paragraph 17 of Appendix D to the Schedule of Benefits, the Board’s interpretation is also consistent with Charter values of equality and security of the person.

[43] The Charter-protected right to security of the person safeguards individual dignity and autonomy. Our law has long protected a patient’s freedom to make decisions about their healthcare and bodily integrity: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64-67. Section 15 of the Charter guarantees every individual the right to equal treatment before and under the law, and the right not to be discriminated against based on enumerated and analogous grounds.

[44] The Supreme Court of Canada has recognized that the history of transgender and other gender non-conforming people in Canada has been marked by discrimination and disadvantage. The Supreme Court noted that transgender people occupy a unique position of disadvantage in our society, particularly in relation to housing, employment and healthcare: Hansmand v. Neufeld, 2023 SCC 14, at paras. 84-86.

[45] I find that interpreting Part B of paragraph 17 of Appendix D to the Schedule of Benefits in a way that requires transgender or non-binary people assigned male at birth to remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person. Such an interpretation would force transgender, non-binary people like K.S. to choose between having a surgery (penectomy) they do not want and which does not align with their gender expression to get state funding, on the one hand, and not having gender affirming surgery at all, on the other. Such a choice would reinforce their disadvantaged position and would not promote their dignity and autonomy.
. Dickson v. Vuntut Gwitchin First Nation

In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].

Here the court considers the 'values' of the Charter in interpreting Charter s.25:
(b) Character and Larger Objects of the Charter

[130] The character and larger objects of the Charter are consonant with the idea that the purpose of s. 25 is, as the text suggests, the protection of collective Indigenous minority interests from encroachment by conflicting individual Charter rights and freedoms. In R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, Dickson C.J. wrote that the “values and principles essential to a free and democratic society” that might justify limitations on Charter rights include “respect for cultural and group identity” (p. 136). This latter idea, as we have seen, was identified in the Secession Reference, at para. 82, as an “underlying constitutional value” — that of protection for minority rights. It finds expression in the constitutional text through, among other provisions, s. 25 of the Charter (see also Metallic, at p. 13). Chief Justice Lamer explained in Van der Peet that it is Indigenous peoples’ prior occupancy of North America that “separates [them] from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status” (para. 30).

[131] These foundational decisions, and this Court’s broader jurisprudence, confirm that while the Charter undoubtedly protects individual rights (see McKinney, at p. 261), it was not intended to do so at the expense of the collective rights of the Indigenous peoples of Canada as a distinct minority deserving of constitutional protection. The recognition that s. 25 protects certain rights and freedoms from abrogation or derogation that might flow from giving effect to conflicting Charter rights and freedoms is, therefore, in keeping with the character and overarching purposes of the Charter itself.
. New Blue Ontario Fund v. Ontario (Chief Electoral Officer)

In New Blue Ontario Fund v. Ontario (Chief Electoral Officer) (Div Court, 2024) the Divisional Court illustrates some Election Finances Act procedures, here were a political party felt they were entitled to greater allowance subsidies.

Here, the court cites a SCC case on the 'values' interpretation of Charter rights, which can have the effect of expanding Charter standing:
[63] After the CEO made his decision in this case, the Supreme Court of Canada released its decision in Commission scolaire. In Commission scolaire, five parents who were not rights holders under s. 23 of the Charter applied to have their children admitted to a French first language education program. The Minister denied their applications. The Supreme Court set aside the Minister’s decision, finding that in exercising her discretion, she was required to consider the values underlying s. 23 of the Charter (even though the parents were not rights holders) and to conduct a proportionate balancing of those values with the government’s interests.
. Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment

In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment (SCC, 2023) the Supreme Court of Canada considered 'minority language educational rights' under Charter s.23.

In these quotes the court characterizes Charter 'values', here in a Charter s.23 ['minority language educational rights'] context. The concept of 'values' in this case allows children of parents who are not direct rights-holders to still benefit from the relevant rights, as they support the Charter's 'values':
(1) The Values Underlying Section 23 Are Relevant to the Exercise of the Minister’s Discretion

[75] Charter values are those that “underpin each right and give it meaning” (Loyola, at para. 36). Charter values are inseparable from Charter rights, which “reflect” them (para. 4). The choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision‑making process of the various branches of government.

[76] This Court has recognized in its decisions that Charter values have various functions, depending on the context in which they come into play. For example, these values can be used in the development of common law rules (RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at pp. 602‑3; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 675; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 85 et seq.; M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at paras. 22‑23 and 30). In statutory interpretation, Charter values are an important tool, because courts must, in circumstances of ambiguity, prefer an interpretation that is respectful of these values (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62).

[77] In addition, as I explained above, administrative decision makers must always consider the values relevant to the exercise of their discretion. The manner in which Charter values are dealt with is thus adapted to the specific context of administrative law (L. Sossin and M. Friedman, “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391, at p. 408). In this sense, these values engage the Doré framework, even in the absence of any infringement of a right. Where a Charter right is infringed, the values “help determine the extent of any . . . infringement” of that right “and, correlatively, when limitations on that right are proportionate in light of the applicable statutory objectives” (Trinity Western University, at para. 57, quoting Loyola, at para. 36).

[78] Here, there is a clear link between s. 23 of the Charter and the Minister’s decisions, because the decisions were likely to have an impact on a minority language educational environment. Moreover, on judicial review of the two decisions made by the Minister in 2018, the chambers judge ordered the Minister to take into account the purpose of s. 23 when reconsidering A.B.’s application for admission. The Minister herself acknowledged, in the decisions she made following the 2019 judgment, that she had to consider the purpose of s. 23, particularly its remedial nature, in exercising her discretion (A.R., vol. IV, at p. 151). To identify the values that governed the Minister’s discretion, I must therefore begin by determining the purpose of s. 23 and the relevant values underlying it, and I must then assess whether the admission of children of non‑rights holder parents could have an impact on those values.

[79] Section 23(3)(a) of the Charter guarantees certain categories of citizens the right to instruction in the minority official language where “the number of children of citizens who have such a right is sufficient”. This Court has interpreted this constitutional provision as having three purposes: the right is “at once preventive, remedial and unifying” in nature (Conseil scolaire francophone de la Colombie‑Britannique, at para. 15). As the Court stated about the provision in Conseil scolaire francophone de la Colombie‑Britannique, “[i]t is intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of those communities” (para. 15).

[80] In practical terms, this means that the preservation and development of minority language communities are among the values underlying s. 23. Protection of the right to instruction in the minority official language, explicitly entrenched in the Constitution, is a reflection of these values, insofar as education is a means of realizing the societal ideal that they embody. These values require preserving and developing the vitality not only of the minority language, but also of the minority culture. In Mahe, Dickson C.J. rightly noted the “vital role of education in preserving and encouraging linguistic and cultural vitality” in the minority language community (p. 350). Since Mahe, this Court has repeatedly reiterated that education is an essential means of ensuring the preservation and development of minority language communities (Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 CanLII 119 (SCC), [1993] 1 S.C.R. 839, at pp. 849‑50; Arsenault‑Cameron, at para. 26; Doucet‑Boudreau, at para. 26; Solski, at para. 3; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238, at para. 28; Nguyen, at para. 26). Schools also play this role as a “setting for socialization where students can converse with one another and develop their potential in their own language and, in using it, familiarize themselves with their culture” (Conseil scolaire francophone de la Colombie‑Britannique, at para. 1).

[81] The admission of children of parents who are not rights holders under s. 23 of the Charter can have an impact on the preservation and development of minority language communities. In Gosselin, this Court pointed out that minority language schools must not become “centres of assimilation” by allowing the presence of children from the majority language community to end up swamping the children from the minority language community (para. 31). A few years later, in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, this Court noted that, although the Yukon Francophone School Board had no authority to set admission criteria for children of non‑rights holders because such authority had not been delegated to it, “nothing stops the Board from arguing that the Yukon’s approach to admissions prevents the realization of s. 23’s purpose” (para. 74).

[82] It goes without saying that population growth in the minority language community helps to ensure its development and prevent its decline, including by reducing the likelihood of assimilation and cultural erosion (Conseil scolaire francophone de la Colombie‑Britannique, at para. 156). Population growth in the minority language community also contributes to fulfilling the promise of s. 23, which is to give effect to “the equal partnership of Canada’s two official language groups in the context of education” (Rose‑des‑vents, at para. 27).

[83] Thus, the decisions rendered by provincial and territorial governments regarding the admission of children of non‑rights holder parents to minority language schools, even when they do not directly infringe the right guaranteed by s. 23, can nevertheless have a significant impact on the preservation and development of minority language communities. It follows that these values are always relevant when the government exercises such a discretion and that they must therefore be taken into account. For the purposes of this appeal, this means that the Minister was required to consider the values of preservation and development of minority language communities in exercising her discretion to decide whether to admit children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories.

(2) The Minister’s Decisions Have the Effect of Limiting the Values Underlying Section 23

[84] It is not in dispute that the appellant parents have no constitutional right to have their children receive instruction in French. That being said, viewing the protections of s. 23 of the Charter as being engaged only in cases where an infringement of this section has been shown is contrary to the approach set out in Doré. As I explained above, the Doré framework applies when limitations are imposed on Charter values. I add that taking such a strict view would also be contrary to the remedial purpose of s. 23, which is aimed at “promoting the development of official language minority communities and changing the status quo” (Conseil scolaire francophone de la Colombie‑Britannique, at paras. 3 and 16; see also Doucet‑Boudreau, at para. 29), as well as contrary to its preventive purpose.

[85] A contextual approach must be adopted to determine whether the values of preservation and development of minority language communities were limited by the Minister’s decisions against admitting the children of the appellant parents to the schools of the Francophone minority in the Northwest Territories. Because of their collective dimension, the protections conferred by s. 23 of the Charter must be assessed in light of the unique language dynamics of a province or territory (Reference re Public Schools Act (Man.), at p. 851; Solski, at paras. 34 and 44). This requires an analysis of the relationship between the minority and majority language groups in order to understand “the historical and social context of the situation to be redressed” (Arsenault‑Cameron, at para. 27).

[86] The evidence shows that, within the specific language dynamics of the Northwest Territories at the time, the preservation and development of the Francophone community were supported through, among other things, the admission of a certain number of children of non‑rights holder parents. Such admissions contributed to the growth of the Francophone community of the Northwest Territories and promoted its development, in such a way as to reduce the likelihood of assimilation and prevent cultural erosion. It must therefore be concluded that, at the time the Minister made her decisions, there was a link between the admission of children of non‑rights holder parents to French‑language schools in the Northwest Territories and the preservation and development of the Francophone community there.

[87] In fact, at the time the impugned decisions were made, the Minister acknowledged that the assimilation rate and exogamous marriages were challenges to be overcome for the transmission of the French language within the Francophone community of the Northwest Territories. As the 2016 Directive recognized, the admission of a certain number of children of non‑rights holder parents to French first language schools in the Northwest Territories supported the growth of the rights holders population, which was an “inherent part” of the revitalization of the French language.

[88] The Report reviewing the 2008 Directive was to the same effect. After noting that natural growth of the rights holder population and the migration of rights holders “may not be sufficient to maintain a level of population sufficient for supporting French first language schools, particularly in Hay River” (p. 20), this report recommended the admission of certain children of non‑rights holder parents, particularly to allow for the sustainment and growth of the Francophone community of the Northwest Territories (p. 21).

[89] Depending on the circumstances, the admission of children of non‑rights holder parents may have a positive or a negative impact on the minority language community. This means that the government’s refusal to admit a child of non‑rights holder parents will not have the effect of limiting the preservation and development of minority language communities in every case. On the contrary, in some cases, the values underlying s. 23 of the Charter will militate against the admission of children of non‑rights holder parents. As I mentioned above, minority language schools may become centres of assimilation if the admission of children of non‑rights holder parents undermines the linguistic and cultural vitality of the linguistic minority in the schools. Here, however, several factors showed that the children’s admission would not have such consequences, including the CSFTNO’s support for their admission and the individual characteristics of each application.

[90] I reiterate that in the cases before us, the appellant parents had to undergo and have their children undergo an assessment by officials at the school where enrolment was sought. Their files were then sent to the CSFTNO, which, after reviewing them, determined that the children’s admission would be beneficial for the vitality of the educational environment in question and of the Francophone community in general.

[91] The admission of the children of the appellant parents would therefore have had a positive impact on the preservation and development of the Francophone community of the Northwest Territories. In this context, refusing to admit those children by prioritizing the government’s interests had the effect of limiting the values of preservation and development of minority language communities, which underlie s. 23. The Minister therefore had to proportionately balance these values with the government’s interests.

....

[103] I pause here to make two important clarifications. Stating that the Minister did not proportionately balance the values underlying s. 23 of the Charter with the government’s interests in this case does not amount to imposing an obligation on decision makers in her position to admit all children of non‑rights holder parents. A refusal does not always mean that there was a disproportionate balancing of the relevant values and the government’s interests. Nor does this amount to endorsing freedom of choice of the language of instruction, a model expressly rejected by the framers under s. 23 (Solski, at para. 8; Nguyen, at paras. 35‑36). On the contrary, the freedom of choice model would imply the systematic admission of children of non‑rights holder parents without a proportionate balancing of Charter values. In each case, the decision maker must consider the relevant values in light of the particular circumstances of the application in order to decide whether to admit children of non‑rights holder parents.



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Last modified: 25-06-24
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