Contemporary Examples of Charter Infringement Justification - Mitchell McInnis

The Canadian Charter of Rights and Freedoms, entrenched in the Constitution Act, 1982, protects certain fundamental rights and freedoms of persons in Canada from encroachment by the government and government actors. At times, a provision in the Criminal Code may be questioned as infringing on a Charter right, but the limitation clause of the Charter, s. 1, allows infringements to be upheld if they can be justified.

The following blog will first describe the Oakes test used by Canadian courts to justify an infringement. Afterwards, two examples involving the Oakes test will be discussed. First, a recent case from the Manitoba Court of Queen’s Bench involving the justification of a Charter infringement in the criminal context. Second, a potential contemporary violation of the Charter relating to the COVID-19 pandemic; there exist arguments for and against taxing unvaccinated Canadians, but a s. 1 analysis suggests the measure would not be saved.

The limitation clause of the Charter specifies rights may be circumscribed by “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[1] Unfortunately, the description of reasonable limits set out in the clause is too vague to give a framework that can be used by the courts. The framework used today to justify a limitation was first laid out in R. v. Oakes. The test is made up of two parts. Part one asks if the government has identified a pressing and substantial objective underlying the limiting measure. Part two considers whether the limitation is proportional and consists of three components: (1) whether the measure is rationally connected to the objective identified in part one, (2) whether the measure is minimally impairing with regard to affected rights, and (3) whether the measure’s benefits outweigh the harm caused by the limitation.[2] Expanding on the three components, a rational connection may be ascertained by asking if the challenged provision is causally connected to the government’s objective on the basis of logic and reason.[3] Minimal impairment requires asking if there is an alternative which would sufficiently, not necessarily as effectively, achieve the goal of the provision while being less impairing.[4] The last component, the weighing of benefits and harm, requires a comparison of societal benefits of the provision with the effects on the rights of the affected individuals; it is the only component that considers the severity of the infringement, while the first two components are based on an assessment of the law’s purpose.[5]

In R. v. Sukhan, as part of a criminal case of the Manitoba Court of Queen’s Bench, the Oakes test addressed whether a provision of the Criminal Code was justified under s. 1 of the Charter. The accused was charged with sexual assault.[6] The provision of the Criminal Code at issue, s. 278.92, requires persons charged with a sexual offence to apply for a hearing to determine the admissibility to trial of personal records of the complainant in the possession of the accused.[7] The disclosure of such records at a pre-trial hearing potentially exposes the defence’s strategy to the Crown and the complainant, who may then further tailor their strategy and testimony.[8] The advantage given to the complainant interferes with the accused’s right to a fair trial in violation of s. 7 and s. 11(d) of the Charter.[9]

In the decision, Judge Edmond held the provision could not be saved under s. 1 of the Charter; the provision satisfied the substantial objective and rational connection parts of the Oakes test, but then failed the minimally impairing stage. There were multiple objectives of the impugned provision: preserving complainant rights to privacy, dignity, and security of the person; increasing victim confidence in the justice system by encouraging complainants to report and prosecute sexual offences; and permitting the use of evidence to allow the accused to make a full defence to ensure a fair trial.[10] These objectives were considered pressing and substantial, thus satisfying part one of the Oakes test. In part two of the test, Judge Edmond agreed there was a rational connection between the identified objectives and the impugned legislation; the rational connection component of the proportionality inquiry was satisfied.[11] The minimal impairment component of the proportionality inquiry was not satisfied. The provision was considered overbroad; the provision applies to evidence which may have nothing to do with sexual conduct or history.[12] Therefore, having failed the Oakes test, the limitation on the accused’s Charter rights was not justified.

Another recent example where the Oakes test was of significance was the proposed tax on persons unvaccinated against COVID-19 in Quebec. The tax would have imposed a monetary penalty on those who are eligible to receive the vaccine but refuse to do so.[13] There were several points of debate surrounding the proposed tax, one of which was the constitutionality of the measure; namely a violation of s. 7, the right to life, liberty and security of the person which includes personal autonomy and bodily integrity according to prior jurisprudence.[14] In the following, to be considered is whether the tax is a violation of the Charter and, afterwards, whether the Oakes test suggests that the measure fails to be justified under s. 1 of the Charter.

In deciding the constitutionality of the tax, the first question is whether the measure does indeed violate s. 7 of the Charter. Those opposed to the tax could argue the measure is coercive; the government is forcing persons who do not want the vaccine to become vaccinated and, in doing so, violates the Charter right by depriving a person of a choice.[15] However, the province may argue it is not forcing anyone to receive an injection and is instead only imposing a financial consequence on choosing to remain unvaccinated; such an economic consequence is not prohibited by the Charter.[16] Regardless, the consequence could be viewed as indirectly interfering with a person’s bodily autonomy significantly enough that the measure is likely to violate s. 7 of the Charter.

If the tax is found to limit the s. 7 Charter right, the Oakes test will be used to determine if the infringement can be saved under s. 1 of the Charter. First, the government objective must be pressing and substantial; combatting a pandemic through increased vaccination rates is likely a pressing and substantial objective.

Second, obligatory vaccinations must be rationally connected to that objective. Increased vaccination rates reduce transmission and hospitalization. Therefore, it is rationally connected to combatting the pandemic via increased vaccination rates.

The third requirement of minimal impairment, however, is unlikely to be satisfied.[17] Even though a tax may be an effective way to increase vaccination rates, there are less intrusive methods to reach the same objective. Alternatives include greater education about vaccines to increase vaccination rates[18] or restricted access of unvaccinated persons to particular locations; these measures may involve a degree of inconvenience adequate to slightly increase vaccination rates.[19]

Lastly, the weighing of societal benefit against the harm of limiting unvaccinated individuals’ rights is unlikely to be in favour of the tax. The argument suggesting the benefit outweighs the harm would show that vaccines decrease the risk of transmission and, in doing so, protects others in the community. However, waning immunity from decreasing antibody numbers suggests the vaccine provides only a temporary decrease in the risk of transmission of the disease.[20] Immunity wanes quickly, within just weeks and quite significantly within months[21] of having received the vaccine, and so cannot be said to be the principal benefit of the vaccine due to its transient nature. A transient benefit of this sort cannot be said to outweigh a major Charter violation of unvaccinated individuals.

The robust benefit of the vaccine is the reduction in risk of death and hospitalization which remains in the long term. The mechanism by which the body remembers a previous illness will produce new and more effective antibodies during an infection subsequent to vaccination.[22] As such, there is long term protection against death and hospitalization. However, this benefit is more so individual; unvaccinated persons maintain a greater risk of death and hospitalization for themselves. It may be said that the societal aspect of the measure is the decrease in hospitalizations, which places less pressure on the healthcare system and also benefits vaccinated persons as well. Despite this societal aspect, only ten percent of those eligible for the vaccine in Quebec choose to remain unvaccinated.[23] The increased pressure on the health care system from those who, from the pool of ten percent, become hospitalized would increase medical costs of the province and cause inconvenience by slowing the rate of elective surgeries to an extent. Increased financial burden and inconvenience to other patients, however, cannot be viewed as adequately outweighing the harm of violating a Charter right of the unvaccinated individuals. The tax on the unvaccinated is likely to fail at the minimal impairment stage of the Oakes test, if not also at the weighing of the harm and benefit stage, and, as such, would not be justified under s. 1 of the Charter.

The Oakes test provides a framework to determine if a Charter violation is justified under s. 1 and has remained relevant to this day both within and outside the criminal context. This is shown both by the recent case of R. v. Sukhan and the proposal of an anti-vax tax. Parliament and the provincial legislatures continually attempt to address evolving issues in the modern day, and so, the Oakes test will remain legally relevant in the future so long as Canada continues to be a country of constitutional supremacy.

[1] Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [2] R v Oakes, [1986], 1 SCR 103 at paras 69–71, [1986] SCJ No 7. [3] Alberta v Hutterian Brethren of Wilson Colony, [2007] SCCA No 397 at paras 48–52, [2007] CSCR No 397. [4] Ibid at paras 53–69. [5] Ibid at paras 70–76. [6] R v Sukhan, 2021 MBQB 226 at para 1 [Sukhan]. [7] Ibid at para 2; Luke Merrimen, “Third Party Records Applications In Sex Offence Trials (Part Five): The Accused Must Seek A Ruling As To Admissibility In Order To Use Private Records At Trial” (17 June 2019), online (blog): Luke J Merrimen Criminal Defence Litigation <merrimenlaw.ca/blog/2019/6/16/third-party-records-applications-in-sex-offence-trials-part-five-the-accused-must-seek-a-ruling-as-to-admissibility-in-order-to-use-private-records-at-trial>. [8] R v Sukhan, 2021 MBQB 168 at para 17; Erin Sobat, “SCC to Decide Constitutionality of New Procedure for Admitting Private Records in Sexual Offences Trials” (1 March 2021), online (blog): theCourt.ca <www.thecourt.ca/scc-to-decide-constitutionality-of-new-procedure-for-admitting-private-records-in-sexual-offences-trials>. [9] Sukhan, supra note 6 at para 2. [10] Ibid at para 9. [11] Ibid at paras 13–14. [12] Ibid at para 18. [13] Ainslie MacLellan & Laura Marchand, “Quebec scraps planned tax on the unvaccinated” (1 February 2022), online: CBC News <www.cbc.ca/news/canada/montreal/vax-tax-nixed-1.6334828>. [14] Aaron Wherry, “A tax on the unvaxxed would be legally and ethically questionable – even if it worked” (13 January 2022), online: CBC News <www.cbc.ca/news/politics/legault-tax-unvaccinated-pandemic-covid-omicron-1.6312706>. [15] Ibid. [16] Zena Olijynk, “Proposed Quebec tax on unvaccinated likely is within rights of province to impose: Davies lawyer” (25 January 2022), online: Canadian Lawyer <www.canadianlawyermag.com/practice-areas/tax/proposed-quebec-tax-on-unvaccinated-likely-is-within-rights-of-province-to-impose-davies-lawyer/363449>. [17] Ibid; Wherry, supra note 14; CTV News, “Taxing the unvaccinated is a charter violation, but that may not matter: lawyer” (12 January 2022) at 00h:01m:01s, online (video): YouTube <www.youtube.com/watch?v=6oOLXG8DmO8>. [18] Wherry, supra note 16; MacLellan & Marchand, supra note 13. [19] Wherry, Supra note 16. [20] Adam Miller, “Why 'waning immunity' from COVID-19 vaccines isn't as bad as it sounds” (23 October 2021), online: CBC News <www.cbc.ca/news/health/waning-immunity-covid-19-vaccines-breakthrough-infections-canada-1.6221608 >. [21] Michael Le Page, “How much less likely are you to spread covid-19 if you're vaccinated?”, NewScientist (23 October 2021), online: <www.newscientist.com/article/2294250-how-much-less-likely-are-you-to-spread-covid-19-if-youre-vaccinated>. [22] Ibid. [23] MacLellan & Marchand, supra note 13.