Below you will find helpful excerpts and summaries from key pages of justice.gc.ca.*
What is the Charter?
The Charter of Rights and Freedoms, or Charter (https://laws-lois.justice.gc.ca/eng/const/page-15.html), protects basic rights and freedoms that are essential to keeping Canada a free and democratic society. It ensures that the government, or anyone acting on its behalf, doesn’t take away or interfere with these rights or freedoms unreasonably. It is a powerful force for progress, protection, compassion, and fairness with the power to influence our society by interpreting laws and policies.
The Charter allows you to challenge any government action that you believe violates your rights or freedoms. The most complex and controversial Charter-based challenges end up before the Supreme Court of Canada. In the past, these challenges have set legal precedents and also inspired significant changes to federal, provincial, and territorial laws. To learn more about the Charter, visit: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/learn-apprend.html
Which Charter rights are of particular interest to business owners?
1. Mobility Rights
Mobility of citizens 6. (2)(b) “Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right … to pursue the gaining of a livelihood in any province.”
2. Legal Rights:
Life, liberty and security of person
7. “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.”
Search or seizure
8. “Everyone has the right to be secure against unreasonable search or seizure.”
Treatment or punishment
12. “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
Can the government put limits on your Charter rights?
The Charter recognizes that even in a democracy, rights and freedoms are not absolute. Section 1 of the Charter allows the government to put limits on rights and freedoms if that limit:
is set out in law (a law has to be made)
pursues an important goal which can be justified in a free and democratic society
pursues that goal in a reasonable and proportionate manner (Oakes test)
Section 1 (Guarantee of Rights and Freedoms) is engaged or activated when a right or freedom has been violated - in this case, your business being declared non-essential and restrictions placed on it through an act of law (Emergency Measures & Civil Protection Act and Reopening Ontario Act – A Flexible Response to COVID-19). Both acts are subject to the Charter. By being subject to the Charter, the violation in law has to satisfy Section 1 (S1.) of the Charter.
When are government-imposed rights limits unfair?
The onus of proof under S1. is on the person seeking to justify the limit, generally the government. The standard of proof is the Oakes Test. The test interprets S1. of the Charter, which states that rights are guaranteed, “subject only to such reasonable limits… as can be demonstrably justified in a free and democratic society.” This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right. To learn more about Section 1. Reasonable Limits, visit https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html
There are two aspects to the Oakes Test:
1. First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom.
2. Second, the party invoking S1. must show the means to be reasonable and demonstrably justified. "Demonstrably justified" connotes a strong evidentiary foundation. Cogent and persuasive evidence is generally required (Oakes, supra). Where scientific or social science evidence is available it will be required; however, where such evidence is inconclusive, or does not exist and could not be developed, reason and logic may suffice.
The second element of the Oakes Test has three parts:
1. "Rational Connection": the limit must be rationally connected to the objective. It must not be arbitrary, unfair or based on irrational considerations.
2. "Minimal Impairment": the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective “in a real and substantial manner.”
3. "Final Balancing": “whether there is proportionality between the effects of the measure that limits the right and the law's objective” [emphasis added] in terms of the greater public good.
The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians. Some legislation has passed the test. For example, in R v Keegstra, the Supreme Court held that a law against hate speech was a reasonable and justifiable limit on section 2(b) of the Charter, freedom of expression. The test provides a mechanism for the courts to balance, on the one hand, the government’s ability to achieve its goals and, on the other, the protection of individual rights. This balancing test is now considered a cornerstone of Canadian constitutional law. (https://ualawccsprod.srv.ualberta.ca/2019/07/oakes-test/)
What if the government limits your rights without good reason?
If you think that the government has put limits on your rights without good reason, you can challenge this in court. If the court agrees with you, the Charter sets out three types of remedies, which are actions intending to compensate for the rights violation in question.
First, you can ask the court for any remedy that is “appropriate and just in the circumstances.” For example, a court might stop court proceedings and let a person go if they decide that he or she has been denied the right to a trial within a reasonable time. Money can also be awarded in appropriate circumstances.
Second, a remedy is available when authorities carrying out investigations for the government (for example, police officers) violated a person’s Charter rights. This may happen, when they improperly search for evidence on private property and violate a person’s right to privacy. In this situation, the person can ask a court to order that the evidence not be used against him or her in trial. A court will make an order like this if it is clear that using such evidence at trial would “bring the administration of justice into disrepute”.
Third, if the court finds that a law or a section of a law violates a person’s Charter rights, they can make an order saying that the law is not valid.
Do I have to honour mask exemptions for employees and patrons?
One responsibility of businesses, which has become a contentious issue, is the honouring of mask exemption laws. The government of Ontario (https://www.ontario.ca/page/face-coverings-and-face-masks) as well as local regions and jurisdictions set out recommendations for facial coverings, including exemptions. According to the Ontario by-laws and the Ontario Human Rights Code, mask exemption is a “no questions” policy and shops should accept any patron who claims an exemption, without requiring proof or explanation of the nature of the exemption.
Many businesses have not honoured mask exemption laws for patrons and/or employees. The argument has been made that mask exemption laws do not apply on private property (thus invoking Trespass to Property Act, R.S.O. 1990, c. T.21). However, the Charter does weigh into discriminatory issues under
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Therefore, not honouring provincially and/or regionally mandated mask exemption laws may be considered discrimination based upon S.15 (“mental or physical disability") in Canadian court.
*The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice.