The Guarantee of Reasonableness

Section 1 of the Charter provides that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Supreme Court has affirmed that section 1 plays a dual role, both as a limit to rights and a guarantee of rights.[1]  As Justice Arbour observed in Gosselin, “[w]e sometimes lose sight of the primary function of s. 1 – to constitutionally guarantee rights – focussed as we are on the section’s limiting function.”[2]  Thus while section 1 provides a means by which governments can justify infringements of Charter rights, it also serves as a guarantee that laws, policies, government programs and administrative decision-makers will limit rights and balance competing societal interests in a “reasonable” manner.  In this sense, section 1 serves as a potential domestic source for the international law obligation to adopt reasonable measures, commensurate with available resources and in light of competing needs, to implement and realize social and economic rights.[3]

In the words of Chief Justice Dickson, “[t]he underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter, and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justifiable.”[4]  Chief Justice Dickson identified the underlying Charter values that must guide the section 1 analysis as including social justice and equality, enhanced participation of individuals and groups in society, and Canada’s international human rights obligations.[5]


Positive Obligations to Adopt Reasonable Measures to Protect Vulnerable Groups

In interpreting and applying section 1, the Supreme Court has underscored governments’ obligations to protect the rights of vulnerable groups.

In Irwin Toy, for example, restrictions on advertising aimed at children under the age of thirteen were found to be a justifiable infringement of section 2(b) rights to freedom of expression, because such restrictions were consistent with the important Charter value of protecting vulnerable groups, such as children.[6]

International human rights law generally, and the ICESCR in particular, are central to the values that underlie section 1.  In Slaight Communications,[7] the Court found that an adjudicator’s order requiring an employer to provide a positive letter of reference to a wrongfully-dismissed employee was a justifiable infringement of the employer’s right to freedom of expression because it was consistent with Canada’s commitments under the ICESCR to protect the employee’s right to work.  The Court concluded that an appropriate balancing of the two rights by the adjudicator properly came out on the side of protecting the right to work, as guaranteed in the ICESCR.  Chief Justice Dickson held in this regard:

Especially in light of Canada’s ratification of the International Covenant on Economic, Social and Cultural Rights … and commitment therein to protect, inter alia, the right to work in its various dimensions found in Article 6 of that treaty, it cannot be doubted that the objective in this case is a very important one … Given the dual function of s. 1 identified in Oakes, Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.[8]

The assessment of what positive measures are reasonably required to accommodate disability or other characteristics of disadvantaged groups has been situated by the Supreme Court within the section 1 guarantee of reasonable limits.[9]  In the Eldridge case,[10] the Court considered a challenge brought by deaf patients in British Columbia to the provincial government’s failure to provide sign language interpretation services within the publicly funded health insurance system.  Having determined that the failure to provide interpretation services violated the section 15 of the Charter, the Supreme Court considered the cost of providing interpreter services to deaf patients in relation to the overall provincial health care budget.  The Court concluded that the government’s refusal to fund such services was not reasonable.[11] In the course of its section 1 analysis the Court noted that:

It is also a cornerstone of human rights jurisprudence, of course, that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation.  The obligation to make reasonable accommodation for those adversely affected by a facially neutral policy or rule extends only to the point of “undue hardship”; see Simpsons‑Searssupra, and Central Alberta Dairy Poolsupra. In my view, in s. 15(1) cases this principle is best addressed as a component of the s. 1 analysis.  Reasonable accommodation, in this context, is generally equivalent to the concept of “reasonable limits.”[12]

The “undue hardship” standard is thus found by the unanimous Court in Eldridge to fit within the “reasonable limits” standard of section 1.  The standard of undue hardship as it has been developed in Canadian human rights law is a rigorous one in relation to the allocation of budgetary resources.  In Central Okanagan School District v Renaud,[13] the Supreme Court considered the ‘undue hardship’ analysis under human rights legislation and rejected the de minimus test adopted in some American cases, suggesting that it “seems particularly inappropriate in the Canadian context.”[14]  In the Court’s view:

More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term ‘undue’ infers that some hardship is acceptable; it is only ‘undue’ hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words ‘reasonable’ and ‘short of undue hardship.’ These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case.

In British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights),[15] the Court held that the standard of reasonableness under human rights legislation must be particularly high in relation to costs defenses put forward by governments.  The Court cautioned that: “it is all too easy to cite increased costs as a reason”; that “impressionistic evidence of increased expenses will not generally suffice”; and that courts must consider that “there may be ways to reduce costs.”[16]

In G(J), the Court held that the government had a positive obligation under section 7 of the Charter to provide legal aid to parents who could not afford a lawyer when the parent’s life, liberty, or security is at stake in child custody proceedings.[17]  Noting that violations of section 7 rights will only rarely be overridden by competing social interests, and hence are unlikely to be found to be constitute reasonable limits under section 1, the Court found that “a parent’s right to a fair hearing when the state seeks to suspend such parent’s custody of his or her child outweighs the relatively modest sums, when considered in light of the government’s entire budget, at issue in this appeal.”[18]

Even in Newfoundland (Treasury Board) v NAPE, in which the Supreme Court found the provincial government’s decision not to honour a pay equity award in favour of public sector workers, largely women, in the amount of $24 million, was reasonable and justifiable under section 1, the Court claimed to be applying a rigorous standard. [19]  While the Court found that a budgetary crisis justified an infringement of section 15 of the Charter in that case, Justice Binnie, cautioned that courts must remain sceptical of attempts by governments to justify infringements of rights on the basis of budgetary constraints, noting that “there are always budgetary constraints and there are always other pressing government priorities.”[20]  Justice Binnie also rejected the Newfoundland Court of Appeal’s suggestion that budgetary decisions are inherently political and should be subject to a unique deferential standard  based on the separation of powers.[21]  Writing for the Court, Justice Binnie noted that such a broad deference in relation to budgetary decisions or socio-economic policy would essentially transfer the judicial mandate of assessing reasonableness under section 1 onto the legislature:

No doubt Parliament and the legislatures, generally speaking, do enact measures that they, representing the majority view, consider to be reasonable limits that have been demonstrated to their satisfaction as justifiable.  Deference to the legislative choice to the degree proposed by Marshall J.A. would largely circumscribe and render superfluous the independent second look imposed on the courts by s. 1 of the Charter.[22]

In this regard, the Supreme Court’s approach to ‘deference’ under section 1 is similar the standard set out under the OP-ICESCR, which directs the Committee on Economic, Social and Cultural Rights adjudicating complaints to “consider the reasonableness of the steps taken by the State Party” and to “bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.”[23]

Section 1 Reasonableness and Administrative Decision-Makers

Chief Justice McLachlin noted in Cooper v Canada (Human Rights Commission),[24] that administrative decision-makers, tribunals and commissions, play a critical role in adjudicating fundamental rights of many citizens, including many Charter rights.  In keeping with this view, the Supreme Court has confirmed the authority of a wide range of administrative bodies to consider and apply the Charter.[25]

In the recent decision of Doré v Barreau du Québec[26] the Court departed from some of its earlier jurisprudence[27] by proposing that, in cases where administrative decision-making under statutory authority is alleged to have been exercised in a manner that is contrary to the Charter, judicial review of such decisions may be conducted under an administrative law test of reasonableness, rather than by way of section 1 and the Oakes test.  Writing for the Court, Justice Abella argues that the modern view of administrative tribunals has given rise to a more robust form of administrative law reasonableness, nurtured by the Charter, which can provide essentially the same level of protection of Charter rights as does a section 1 analysis.[28]  Justice Abella explains:

On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play … If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.[29]

Doré provides strong grounds for insisting that administrative decision-makers consider both explicit Charter rights and the foundational “Charter values” that have been closely linked to Canada’s international human rights obligations, including socio-economic rights.  The challenge will be to ensure that this obligation is taken seriously by administrative decision-makers, particularly where decisions are being made affecting such fundamental rights as the right to adequate housing or to an adequate standard of living.  As Lorne Sossin notes:

If the principle that discretion should be exercised in a manner consistent with Charter values is incorporated into the guidelines, directives and practices of tribunals, this could have a profound effect on the opportunity for these adjudicative spaces to advance social rights. By contrast, if such values turn out not to be relevant in the everyday decision-making of such bodies, then the Court’s rhetoric in Doré will suggest a rights orientated framework that is illusory.[30]

[1] R v Oakes, [1986] 1 SCR 103 at 135 [Oakes].

[2] Gosselin, supra note 244 at para 352.

[3] Jackman & Porter, Making the Connection, supra note Error! Bookmark not defined. at 41-46.

[4] Oakes, supra note 381 at para 64.

[5] Oakes, ibid; Slaight Communications, supra note 189 at 1056-1057.

[6] Irwin Toy, supra note 240.

[7] Slaight Communications, supra note 189.

[8]Ibid at 1056-1057.

[9] Schachter v Canada, [1992] 2 SCR 679 at 709; Egan v Canada, [1995] 2 SCR 513 at para 99; Nova Scotia (Workers’ Compensation Board) v Martin, [2003] 2 SCR 504 at para 109.

[10] Eldridge, supra note 211.

[11] Ibid.

[12] Ibid at para 79.

[13] Central Okanagan School District v Renaud, [1992] 2 SCR 970.

[14] Ibid at para 19.

[15] [1999] 3 SCR 868.

[16] Ibid at para 41.

[17] G(J), supra note 252.

[18] Ibid at para 100.

[19] [2004] 3 SCR 381 [NAPE].

[20] Ibid at para 72.

[21] Newfoundland (Treasury Board) v NAPE, 2002 NLCA 72, 221 DLR (4th) 513.

[22] NAPE, supra note 406 at para 103.

[23] OP-ICESCR, supra note Error! Bookmark not defined. at art 8(4).

[24] Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854.

[25] R v Conway, [2010] 1 SCR 765.

[26] Doré v Barreau du Québec, 2012 SCC 12 [Doré].

[27] Multani, supra note 211.

[28] Doré, supra note 421 at para 29.

[29] Ibid at paras 56-58.

[30] Ibid.

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