Court File and Parties
CITATION: Thibault and Ramsay v. Attorney General of Ontario, 2025 ONSC 647
DIVISIONAL COURT FILE NO.: 2844/24 JR
DATE: 20250218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Matheson, and O’Brien JJ.
BETWEEN:
ANDRE THIBAULT and SEAN RAMSAY Applicants
– and –
ATTORNEY GENERAL OF ONTARIO Respondent
COUNSEL:
Gib van Ert and Dahlia Shuhaibar, for the Applicants
Waleed Malik and Maia Stevenson, for the Respondent
HEARD at Toronto: January 28 - 29, 2025, by videoconference
REASONS FOR JUDGMENT
BY THE COURT:
[1] The applicants seek judicial review of part of O. Reg. 167/23 (the Regulation) — a regulation under the Towing and Storage Safety and Enforcement Act, 2021, S.O. 2021, c. 26, Sched. 3 (the Act). The applicants are tow truck drivers/operators who have been disqualified by the Regulation, which now governs who may obtain the necessary certificates to work in the towing industry. They submit that the part of the Regulation that disqualifies them is ultra vires and unconstitutional.
[2] The regulatory regime for the tow truck industry was recently overhauled, giving rise to the Act and the Regulation. This major reform followed a decade of reports and submissions to the government identifying serious problems in the industry, including crime and consumer exploitation threatening the well-being and lives of customers, employees, and others.
[3] The issues on this application arise because the applicants each have a mandatory lifetime weapons prohibition imposed under the Criminal Code, R.S.C. 1985, c. C-46, arising from criminal convictions about twenty years ago. They have since been working in the tow truck industry without incident and without further criminal charges or convictions. Under the new Act and the Regulation, the applicants do not qualify for certification and therefore cannot continue with their work in the industry.
[4] The applicants do not challenge the new regime as a whole. They submit that they support most of the reforms. However, they point to the impact of one specific aspect of the regime on them, preventing them from being qualified to continue as tow truck drivers/operators. As a result of their lifetime weapons bans, they cannot be certified. They submit that they have been wrongly deprived of their work.
[5] For the reasons set out below, we conclude that the regulation at issue is within Ontario’s jurisdiction and does not violate s. 15(1) or s. 12 of the Canadian Charter of Rights and Freedoms. This application is therefore dismissed.
The Applicants
[6] Mr. Thibault is now in his late 50s. Commencing in 1999, he worked as a tow truck driver. He has his own truck. In 2001, Mr. Thibault pled guilty to drug-related charges under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the CDSA). He had prior offences in 1984 and 1990 but has had none since 2001. He has never owned or used a handgun.
[7] Mr. Thibault served a sentence of 16 months in jail and 18 months’ probation for his 2001 conviction under the CDSA. As required by s. 109 of the Criminal Code, the court also imposed a prohibition from possessing any firearm for life.
[8] Mr. Ramsay is also in his late 50s. He has worked as an employee for tow truck businesses since 2008. In 2002, he was convicted under the CDSA for cultivating marijuana. He had prior convictions for theft in 1985 (for which he served nine months in jail) and for possession of a weapon (regarding his use of a block of wood when he got angry with his landlord) in 1989. He has not been involved in criminal activity since 2002. He has never owned or used a handgun.
[9] As a result of Mr. Ramsay’s 2002 conviction under the CDSA, the court also imposed a lifetime weapons ban on him under s. 109 of the Criminal Code.
Section 109 of the Criminal Code
[10] The constitutionality of s. 109 of the Criminal Code has been tested and upheld by the Supreme Court of Canada in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895.
[11] Section 109(1) provides that, for certain offences, a weapons prohibition shall be imposed. In addition to any other punishment that may be imposed, the court shall make an order prohibiting the person from possessing any firearm (or other listed weapon) for a period determined in accordance with subsection (2) or (3).
[12] The applicable offences are set out in s. 109(1). The applicants were caught by s. 109(1)(c), which reads as follows:
109 (1) Where a person is convicted, or discharged under section 730, of …
(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or …
[13] Because of their convictions under s. 109(1)(c), a mandatory order prohibiting the possession of firearms was made with respect to both applicants.
[14] Subsections 109(2) and (3) then address the duration of the prohibition order. For “any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition” the prohibition is for life. Section 110 allows for discretion in some circumstances that do not arise here.
[15] In R. v. Wiles, the accused challenged the constitutionality of the same provision in s. 109 that was used to impose the lifetime prohibition here — s. 109(1)(c). He had also been convicted under the CDSA for unlawfully producing cannabis, like Mr. Ramsay. Mr. Wiles argued that the lifetime prohibition violated s. 12 of the Canadian Charter of Rights and Freedoms because it was cruel and unusual punishment.
[16] In finding that the lifetime prohibition did not breach s. 12 of the Charter, the Supreme Court agreed with the Nova Scotia Court of Appeal that the prohibition was connected to the CDSA offence at issue (producing cannabis) and the recognized sentencing goal of protecting the public. The Supreme Court found at para. 9, that since Parliament “can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so.”
[17] In the decision below in R. v. Wiles, the Nova Scotia Court of Appeal found that in drug production operations, there was a significant concern about firearms: 2004 NSCA 3, at para. 49. In oral argument in this judicial review application, the applicants’ counsel fairly accepted that there can be a connection between drugs and guns. However, counsel submitted that the connection does not arise with the applicants given their personal histories.
[18] The Supreme Court, at para. 9 of R. v. Wiles, found that it was sufficient that Mr. Wiles fell within “a category of offenders targeted for the risk that they may pose.” The Supreme Court held that the sentencing judge’s “insistence upon specific violence, actual or apprehended, in relation to the particular offence and the individual offender” took “too narrow a view of the rationale underlying the mandatory weapons prohibition orders.”
[19] As discussed below, the s. 109 lifetime prohibition is the underpinning of the applicants’ arguments before this Court because of its role in the new regulatory regime for the towing industry. The applicants agree that there have been very serious problems in that industry, and generally support the new regulatory regime, with the exception of the provision in the Regulation that disqualifies each of them from becoming certified to work as tow truck drivers or operators.
New Regulatory Regime for the Towing Industry
[20] The Towing and Storage Safety and Enforcement Act, 2021, was enacted to regulate the towing industry, given the persistent and serious problems in that industry. Widespread problems were identified in a series of reports, including a 2012 report of an anti-fraud task force,[^1] a 2014 report from the Towing and Storage Advisory Group,[^2] and a 2021 report of the Towing Task Force.[^3]
[21] The Ontario government struck the Towing Task Force in 2020 in response to concerns raised about incidents of “criminal activity and violence in the towing industry.”[^4] The Task Force consulted widely, including, among others, towing industry representatives and law enforcement agencies. The earlier reports were also the product of significant consultation.
[22] Among other problem areas, the Task Force concluded that recent increases in violence and crime in the sector had created an unsafe environment for customers, enforcement officials and tow operators. A large portion of the respondents to the Task Force indicated that Ontario should prioritize licensing for tow truck drivers.
[23] The Towing Task Force made numerous recommendations to increase safety and enforcement, clarify protections for customers, improve industry standards and strengthen penalties for violators.
[24] The Task Force recommended a comprehensive provincial oversight model. In response, Ontario passed the Towing and Storage Safety and Enforcement Act, 2021.
[25] The Act’s goals include protecting customers receiving towing services and people working in the industry, supporting legitimate operators, and combating crime and fraud in the sector. The Act includes certification requirements for drivers and operators as well as consumer protection measures, professional standards for towing services, prohibitions against harmful practices and fraud, and complaint procedures.
[26] The certification regime at issue in this application begins with ss. 2 and 3 of the Act. Sections 2 (for tow operators) and 3 (for tow truck drivers) prohibit the provision of towing services without a certificate. Section 5 then provides that the Director[^5] may issue a certificate if the applicant meets the prescribed qualifications and requirements, except in certain circumstances set out in s. 5(3):
(3) Regardless of whether an applicant or certificate holder meets the prescribed qualifications and requirements for a certificate, the Director,
(a) shall refuse to issue or renew the certificate in the prescribed circumstances; …
(b) may refuse to issue or renew the certificate,
(i) if the applicant or holder owes an outstanding fee, fine or administrative penalty, or any interest or penalty in respect of such a fee, fine or penalty, under this Act, the Highway Traffic Act or the Provincial Offences Act,
(ii) if the Director determines that a prescribed circumstance applies, or
(iii) for any prescribed reason.
[Emphasis added.]
[27] Section 64 of the Act then provides for broad regulation-making authority, including regulations governing conditions and requirements for a certificate, giving rise to O. Reg. 167/23.
[28] Before putting forward the Regulation, there were further consultations. Among other things, there was a Technical Advisory Group with key stakeholders. The decision to include criminal record screening requirements in the Regulation was informed by Ontario’s goals to combat criminal activity in the towing industry and protect consumers interacting with the industry. Over one hundred submissions were received, including from towing service providers and law enforcement groups.
[29] After extensive consultations and other research, including a review of the regimes in place at the municipalities that had attempted to address the issues, the Ministry of Transportation put forward the regime for certification that is now included in the Regulation. The Regulation listed specific offences and court orders that would preclude a person from becoming certified. The offences were grouped, and some offences permitted certification after the passage of a period of time.
[30] The submissions sent to Cabinet described how the Act was a response to the growing violence and criminal activity in the towing industry and that the Act was enabling legislation that required regulations. The submissions indicated that the certification system was the “core” of the Act and the “primary mechanism” by which the Act would improve outcomes for the industry and for Ontarians. Among the benefits expected from the Regulation, the submissions noted the reduction of violence and crime.
[31] O. Reg. 167/23 was approved by Cabinet.[^6] Section 8 of the Regulation sets out mandatory “qualification and requirements” to obtain a tow certificate for tow operators, one of which is as follows:
- The applicant does not have a disqualifying record of convictions or charges as described in section 2. [Emphasis added.]
[32] There is a parallel provision under s. 15 (1) 4 for a tow driver certificate.[^7]
[33] Section 2 of the Regulation then provides that a person has a “disqualifying record of convictions or charges” if the person falls within a list of categories, including the following:
(d) the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from,
(i) possessing a weapon, …
[34] The applicants submit that s. 2(d)(i) [^8] is ultra vires and unconstitutional.
Issues and Standard of Review
[35] The issues raised by the applicants are as follows:
(1) whether s. 2(d)(i) is an unreasonable exercise of Cabinet’s authority to promulgate regulations under the Act and therefore ultra vires;
(2) whether s. 2(d)(i) infringes s. 15 of the Charter;
(3) whether s. 2(d)(i) infringes s. 12 of the Charter;
(4) whether, if there is a Charter infringement, it is justified under s. 1 of the Charter.
[36] The standard of review for the Charter issues is correctness.
[37] The standard of review that applies to the ultra vires issue is as set out by the Supreme Court of Canada in Auer v. Auer, 2024 SCC 36, 497 D.L.R. (4th) 381, applying Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. As set out in Auer, at para. 27, Vavilov’s robust reasonableness standard is the default standard when reviewing the vires of subordinate legislation.
[38] “In conducting a reasonableness review, ‘the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision’ (Vavilov, at para. 99)”: Auer, at para. 50.
[39] In Auer, the Supreme Court also clarified the role of its prior decision in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, about the review of subordinate legislation.
[40] All of the following principles from Katz Group continue to apply, and form part of the reasonableness analysis: Auer, at paras. 3, 29-32, 38:
(1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object;
(2) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation;
(3) subordinate legislation benefits from a presumption of validity;
(4) the burden is on the party challenging the subordinate legislation to show that it is not reasonably within the scope of the delegate’s authority; and,
(5) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice – it is not an inquiry into the underlying political, economic, social or partisan considerations.
[41] “Reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute”: Auer, at para. 59.
(1) Vires of the Regulation
[42] The applicants submit that s. 2(d)(i) of the Regulation has both types of fundamental flaws that are recognized in Vavilov as rendering a decision unreasonable, at para. 101. They submit that there is a failure of rationality internal to the reasoning process, and the impugned provision is untenable in light of the factual and legal constraints that bear on it.
[43] The “governing statutory scheme, other applicable statutory or common law and the principles of statutory interpretation are particularly relevant constraints when reviewing the vires of subordinate legislation”: Auer, at para. 60. They are therefore an appropriate starting point.
[44] Section 64(1) of the Act provides the authority to make regulations. It is broadly worded. It gives authority to make regulations “respecting any matter necessary or advisable to effectively carry out the intent and purpose the Act”. That authority is not limited to the specific matters listed under s. 64(1), but the list includes anything regarding the following:
(d) governing certificates and their issuance, renewal, suspension and cancellation, including, …
(iii) governing qualifications and requirements for a certificate, …
[45] The rest of the Act does not limit the types of qualifications and requirements that may be imposed, which is consistent with the broad scope of the authorization to make regulations about certification.
[46] The legislative history summarized above confirms and supports the conclusion that the Regulation is consistent with the Act’s purpose. Although Cabinet gave no reasons for its decision to promulgate the Regulation, we may have regard to the submissions to Cabinet as giving indications as to the purposes of the Act and the Regulation: Auer, at paras. 52-54. The submissions here indicated that the certification system was the core of the Act and the primary mechanism by which the Act would improve outcomes. The expected benefits included the reduction of violence and crime, a serious, long-recognized problem in the industry. The use of criminal records in the certification regime is amply supported by the record that led to the Cabinet decision.
[47] The applicants accept that public safety is one of the goals of the Act and the Regulation. However, they submit that s. 2(d)(i) and the related provisions in the Regulation do not rationally advance public safety (emphasizing that the applicants themselves do not pose a risk). They submit that they have the opposite effect, because they exclude drivers such as themselves who have a demonstrated record of safe and competent participation in the industry. They submit that they limit the number of tow truck drivers and therefore interfere with the demand for those services.
[48] These submissions relate to the effectiveness and wisdom of the Regulation, which is not the question. The “reasonableness standard does not assess the reasonableness of the rules promulgated by the regulation‑making authority; rather, it addresses the reasonableness of the regulation‑making authority’s interpretation of its statutory regulation‑making power”: Auer, at para. 56.
[49] Nor have the applicants established their submission that the government did not consider the matter in detail and misunderstood the implications of the weapon prohibition.
[50] Contrary to this submission, the express words of s. 2 of the Regulation show a detailed level of consideration regarding what should be disqualifying under the Act. Section 2 of the Regulation has four categories of things that are disqualifying:
(1) subsection (a) lists over two dozen specific criminal offences;
(2) subsection (b) lists specific offences and groups of offences that, if convicted in the prior five years, are disqualifying;
(3) subsection (c) lists specific offences under the CDSA that, if convicted in the prior ten years, are disqualifying; and,
(4) subsection (d), quoted above, expressly refers to court orders prohibiting a person from “possessing a weapon” as well as orders regarding some other matters.
[51] Under this detailed regime, it is plainly shown that specific offences, time limits and types of court orders were considered to prepare the draft regulation and that people with weapons prohibitions would be disqualified. Including a weapons prohibition is amply supported by the legislative purposes of the Act.
[52] The applicants seek to move from the general categories in the above section, to the specific consequences for them. They submit that it is irrational to exclude people who have worked lawfully in the industry because of twenty-year-old convictions. They submit that other people with more violent offences may become eligible for a certificate (since some of the other categories under s. 2 have time limits), where the weapons prohibition category does not. These are, again, policy choices. And the submission overlooks the prospect that the people with those more serious offences may also have a weapons prohibition and be disqualified for that reason.
[53] The decision to impose a weapons prohibition on the applicants was made under the Criminal Code. There may be consequences for them. As put in Auer, at para. 58, the “potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences. Whether those consequences are in themselves necessary, desirable or wise is not the appropriate inquiry.”
[54] The applicants also rely on the evidence of their witness, Dr. Norris. Ontario does not object to the Court receiving this evidence. Dr. Norris has stated that he is an expert in “labour economics and the economics of crime”. He has qualifications in that area and his reports largely focus on that area. However, in their vires argument, the applicants rely on a small portion of the Norris reports that discusses the likelihood of someone who has previously committed a crime doing so again (recidivism). Relying on that evidence, they submit that after twenty years, the likelihood is not much different from people who do not have a criminal record. They submit this means their weapons disqualification is unreasonable.
[55] Dr. Norris’ comments on recidivism appear to fall outside his stated expertise. Further, a close look at the studies that he relies on shows that this portion of his opinion has, at best, a weak foundation. However, regardless of these concerns, the issue of recidivism is an argument that addresses the wisdom of the policy choices made in the Regulation. As such it is not a proper consideration for this Court, whose only task is to determine whether Cabinet reasonably interpreted the scope of its authority under the s. 64(1) of the Act when it promulgated s. 2(d)(i) of the Regulation.
[56] The applicants also challenge Ontario’s expert, Prof. Dandurand, a criminologist retained to provide opinion evidence about organized crime, effective measures to combat organized crime infiltration in licit markets, infiltration in the towing industry and the inclusion of the weapons disqualification in the Regulation.
[57] The applicants note Prof. Dandurand’s opinion that disqualifying certain individuals from participating in the towing industry, such as people with a firearms prohibition, can help protect the public and prevent criminal actors from accessing and criminalizing the industry. The applicants then submit that these are mere assertions because they do not focus on people with a weapons prohibition under s. 109 of the Criminal Code in particular. However, the same could be said for Dr. Norris’ opinion evidence. In any event, this does not render the Regulation unreasonable. Again, it goes to Cabinet’s policy choices, which may have unfavourable individual implications. It does not impact the vires of the Regulation unless those implications are outside the scope of Cabinet’s authority to enact regulations under s. 64(1) of the Act, which they are not.
[58] With respect to the main opinion of Dr. Norris, which speaks about the adverse impact of a criminal record on job and earning prospects, the applicants accept that Cabinet appeared to be alive to that impact.
[59] We conclude that s. 2(d)(i) of the Regulation is reasonably within the scope of Cabinet’s authority to make regulations under s. 64(1) of Act. In other words, having considered all relevant factors in the reasonableness review of the vires of the part of the Regulation at issue, as set out in Auer and Vavilov, the applicants have not shown that s. 2(d)(i) or the related subsections of the Regulation are unreasonable.
(2) Section 15 of the Charter
[60] The applicants submit s. 2(d)(i) violates their right to equal treatment protected by s. 15(1) of the Charter. In their submission, s. 2(d)(i) draws a distinction based on criminal history, which they say is an analogous ground. They argue that people with criminal histories experience systemic disadvantage, particularly in employment, and that s. 2(d)(i) reinforces, perpetuates, and exacerbates that disadvantage by further limiting their opportunities to work.
[61] To succeed in their s. 15(1) claim, the applicants must demonstrate that s. 2(d)(i): (a) on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and, (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, 490 D.L.R. (4th) 1, at para. 188; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 28.
[62] The applicants have not succeeded in meeting this test. They fail at the first step because they have not demonstrated, on the evidence before us, that criminal history constitutes an analogous ground.
[63] The applicants say the question of whether criminal history constitutes an analogous ground has not been definitively decided. They rely, for example, on Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, where, at para. 132, the Supreme Court of Canada assumed without deciding that having a criminal record was an analogous ground of discrimination under s. 15(1). The respondent meanwhile points to cases it says would preclude recognizing criminal history as an analogous ground, such as Canada (Minister of Employment and Immigration v. Chiarelli, 1992 87 (SCC), [1992] 1 S.C.R. 711 (regarding the deportation of permanent residents convicted of an offence punishable by imprisonment for five years or more) and Association des policiers provinciaux du Québec c. Sûreté du Québec, 2007 QCCA 1087, leave to appeal to SCC refused, 2008 3198 (regarding the dismissal of police officers for being convicted of indictable offences).
[64] In our view, this is not an appropriate case to determine whether having a criminal history constitutes an analogous ground. The test for recognizing a ground of distinction as analogous is high. In Fraser v Canada, 2020 SCC 28, [2020] 3 S.C.R. 113, at paras. 117 to 123, the Supreme Court declined to recognize a new analogous ground of family status in part because the evidentiary record and parties’ submissions did not “provide the necessary assistance” to explore the implications of such a finding. A finding of a new analogous ground is not limited to the facts of a particular case. As Abella J. stated: “It is either a sustainable legal principle that this Court should accept or it is not”: Fraser, at para. 115.
[65] In British Columbia Birth Registration No. 2018-XX-XX5815, 2021 BCSC 767, 458 D.L.R. (4th) 692, a case involving the recognition of parentage to a child of a polyamorous relationship, the British Columbia Supreme Court also declined to recognize family status as an analogous ground. The court was concerned about the limited social science research in evidence. In addition, the focus of submissions had been on polyamorous families and did not adequately address the implications of family status as a ground more broadly.
[66] The problem is similar here. The applicants have provided social science evidence, in the report of Dr. Norris. However, Dr. Norris’ evidence focuses almost exclusively on disadvantage to people with criminal histories in the labour market. According to Dr. Norris, people with criminal records have lower levels of employment and earnings before they are first convicted of a criminal offence, are subject to discrimination when applying for jobs, have fewer types of employment positions available to them, and have reduced earnings and employment.
[67] This economic evidence is insufficient for us to determine whether criminal history should be an analogous ground. Analogous grounds are centered on immutable personal characteristics central to a person’s identity. In Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, at para. 13, the Supreme Court described enumerated grounds as often serving “as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.” As stated in R. v. Banks, 2007 ONCA 19, 84 O.R. (3d) 1, at para. 100, “in determining whether a personal characteristic qualifies as an analogous ground under s. 15, one must consider whether it cannot be changed without unacceptable cost to one’s identity and dignity.”
[68] Banks involved a Charter challenge to statutory provisions that prohibited “squeegeeing” and solicitation of people in vehicles, including under s. 15(1). The Court of Appeal found that the proposed group, referred to as “beggars,” did not constitute an analogous ground. The Court reached this conclusion in part because the appellants had not “put forward their lack of fixed addresses and the fact that they beg as components of a culture that is important to their identity. Rather they have put these matters forward as indicators of their economic status with which they have to cope”: at para. 101.
[69] We are not deciding whether criminal history could constitute an analogous ground on a different record. But like in Banks, the thrust of the record before us is about the applicants’ economic circumstances — that is, that having a criminal history limits employment opportunities and earnings potential. We recognize that Dr. Norris provides some information about the pre-existing disadvantage faced by people with criminal histories, such as that marginalized ethnic and racial groups are over-represented in the group, that offenders tend to have lower levels of education, and that people with a history of criminal justice involvement are disproportionately from low-income backgrounds. But Dr. Norris does not explore these factors in any detail, nor connect them to an overall identity of the group or an ongoing collective experience of disadvantage, other than in the labour market. The evidence also does not demonstrate that these disadvantages apply to the applicants, other than that neither applicant completed high school. Overall, the evidence does not draw a sufficient connection between the circumstances of people with criminal records and their identity as compared to their economic circumstances. Nor does the evidence focus on the people with a weapons restriction, which is the only subsection challenged here, and explain any differences between those people and others with a criminal record. There are many other criminal convictions that are disqualifying under s. 2 of the Regulations, which the applicants do not challenge as unconstitutional.
[70] One of the problems with the absence of evidence and submissions beyond labour market impacts is the court is unable to properly consider other consequences of finding criminal history as an analogous ground. As the respondent points out, criminal history is widely considered in many areas of professional and business regulation. It is also considered in the criminal justice system, such as for sentencing, bail, or for deciding an inmate’s security classification. Criminal history is further relevant in child protection matters and immigration matters. Without a more robust record and submissions addressing the potentially wide impacts, it is not appropriate for the court to determine whether criminal history should be treated as an analogous ground in this case.
[71] Because the applicants have not shown criminal history is an analogous ground, they have not met the first part of the s. 15(1) test. Their claim under s. 15(1) accordingly fails.
(3) Section 12 of the Charter
[72] Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”.
[73] The applicants submit that the exclusion provided for in s. 2(d)(i) is “treatment or punishment.” We disagree.
The exclusion under s. 2(d)(i) does not constitute “treatment” under s. 12
[74] According to the applicants, a “treatment” within the meaning of s. 12 is a “process or manner of dealing with a person or thing” and to engage s. 12, there must be some active state process involving the exercise of state control over an individual. The applicants argue that s. 2(d)(i) satisfies this definition because it excludes a class of people from the towing industry — including people like them who have already worked in that industry for decades — without any opportunity for discretion, judicial review, or appeal. It is the state, rather than individual employers or an administrative regulatory body, which determines who can and cannot be a tow truck driver or operator. Ultimately the state is determining who can earn a living. This includes people like the applicants, who have worked as truck drivers/operators most of their adult lives. In the applicants’ submission, this points to a high degree of state control over the economic circumstances of people who are already economically vulnerable because of their criminal history.
[75] In making this submission, the applicants acknowledge that the Ontario Court of Appeal has found that the mandatory revocation of a licence as part of a regulatory regime is not “treatment or punishment”. However, they argue that s. 2(d)(i) is different. They submit that it is not providing for revocation based on misconduct; it is a pre-emptive disqualification of individuals from a trade based on a historic criminal conviction.
[76] In Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 87 (SCC), [1992] 1 S.C.R. 711, the Supreme Court dealt with a constitutional challenge to a statutory scheme pursuant to which a permanent resident could be deported if they had been convicted of an offence for which they could be sentenced to a term of imprisonment of five years or more. One of the bases for the challenge was a claim that the scheme violated s. 12 because it constituted a treatment. Sopinka J., who wrote the judgment for the Court, commented that deportation might constitute a “treatment” under s. 12. In doing so, he relied on a dictionary definition of “treatment” that defined it as “a process or manner of behaving towards or dealing with a person or thing…”. Ultimately, however, Sopinka J. did not decide the point, as he found that even if the deportation authorized in the statute under consideration could be considered a treatment, it was not cruel and unusual.
[77] In Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, the Supreme Court considered a constitutional challenge to the provisions of the Criminal Code prohibiting assisted suicide. Sopinka J., who wrote the majority decision, was prepared to assume for the purposes of the s. 12 analysis in that case, that “treatment” could include actions imposed by the state in contexts other than those of a penal or quasi-penal nature. He also allowed for the possibility that “treatment” was not confined to positive actions by the state. In particular, he cited an example of the state prohibiting smoking in prisons. This prohibition could amount to “treatment” because the prisoners affected were subject to state control. However, he found that merely being subject to the edicts of the Criminal Code, as all individuals are, did not constitute “treatment”. There had to be “some more active state process in operation, involving an exercise of state control over the individual” to amount to “treatment”: at p. 612. Merely because a state prohibition impacts an individual more seriously than another individual is not enough.
[78] In Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), the Ontario Court of Appeal found that the mandatory revocation of a physician’s licence because of sexual abuse of patients affected only economic interests, which are not Charter protected. It also considered whether it constituted “treatment” within the meaning of s. 12. The Court decided that it did not. In doing so it reviewed the Supreme Court jurisprudence on the matter and found that while the extent to which “treatment” may apply outside the penal context may not have been definitively determined, a mandatory revocation provision was very different than the other state measures that the jurisprudence has recognized as possibly including treatment — namely lobotomies, castration, and deportation.
[79] In Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, the Ontario Court of Appeal addressed the constitutionality of a mandatory licence revocation provision for dental hygienists who engage in a sexual relationship with a patient. In that case the hygienist subsequently married the patient. The Court convened a five-member panel to determine if cases such as Mussani remained good law.
[80] First the Court of Appeal reiterated that the mandatory revocation of a health professional’s certificate of registration affects an economic interest that is not protected by s. 12 of the Charter. The same is true in this case.
[81] Second, the Court of Appeal once again found that while “treatment” within the meaning of s. 12 may extend beyond state action associated with criminal law, “there is no authority supporting the premise that professional regulation constitutes ‘treatment’ within the meaning of s. 12”: at para. 54.
[82] Contrary to the assertions of the applicants, the weight of this authority is that the exclusion in s. 2(d)(i) of the Regulation cannot be considered treatment within the meaning of s. 12. First, the interests affected are economic, which are not subject to Charter protection. Second, s. 2(d)(i) is analogous to the mandatory revocation of a professional licence, which the Court of Appeal has twice decided is not “treatment”. Third, as in Rodriguez, the exclusion contained in s. 2(d)(i) is just a prohibition. There is no “more active state process in operation, involving an exercise of state control over the individual”: Rodriguez, at p. 612.
The exclusion under s. 2(d)(i) does not constitute “punishment” under section 12
[83] In R. v. Wiles, the Supreme Court of Canada determined that s. 109 of the Criminal Code constitutes treatment or punishment. According to the applicants, the effect of s. 2(d)(i) is to further sanction or punish them for their crimes by providing that, even many years later, they are unable to be a tow truck driver or operator.
[84] In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39, the Supreme Court stated that a measure constitutes punishment if “(1) … it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) … is imposed in furtherance of the purpose and principles of sentencing, or (3) … has a significant impact on an offender’s liberty or security interests.” Section 2(d)(i) does not satisfy this test.
[85] Section 2(d)(i) has nothing to do with sentencing. It is part of a scheme to further consumer protection and public safety objectives relating to the towing industry. It is a civil consequence that flows from the applicants’ past convictions and has nothing to do with the objective of sentencing or punishing the applicants for their past crimes.
[86] “Punishment” under s. 12 does not encompass all consequences that may flow from having a criminal conviction; a law does not become “punishment” if it imposes consequences to further an objective distinct from sentencing: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 63-65. In Chiarelli, the Supreme Court held that the mandatory deportation of permanent residents convicted of a serious crime was not punishment. Many courts have held that the mandatory suspension or denial of a driver’s licence following Criminal Code convictions is not a further punishment: see R. v. Miller (1988), 1988 4685 (ON CA), 65 O.R. (2d) 746 (C.A.).
[87] Finally, s. 2(d)(i) does not affect the applicants’ liberty or security interests. As noted in Siemens v. Manitoba, 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45: “The right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests.”
[88] The applicants argue that their interests extend beyond the purely economic as the inability to earn a livelihood has a profound impact on one’s dignity and psychological health. The same submission was made and rejected in Tanase. While the Court of Appeal acknowledged the significant impact that losing the right to practice one’s profession can have on a person, it confirmed at para. 42 that “[r]evocation of the appellant’s certificate of registration for violating the Code engages neither the right to liberty nor the right to security of the person.” As we have already found, the provision in s. 2(d)(i) is comparable to the provisions under consideration in Tanase, as they have the effect of depriving the applicants of their right to continue in their chosen employment. As such, it is not “punishment” within the meaning of s. 12.
Conclusion re s. 12
[89] As the exclusion in s. 2(d)(i) is neither “treatment” nor “punishment,” the applicants’ argument that it violates s. 12 of the Charter has no merit.
[90] Because the applicants have not demonstrated a violation of their Charter rights, there is no need for us to consider whether a violation would be saved by s. 1 of the Charter.
Disposition
[91] The application is therefore dismissed. The respondent is not seeking costs and none are ordered.
Sachs J.
Matheson J.
O’Brien J.
Date: February 18, 2025
[^1]: Ontario Automobile Insurance Anti-Fraud Task Force November 2012. [^2]: Towing and Storage Advisory Group – Report and recommendations to the Ministry of Consumer Services, March 12, 2014 [^3]: Ontario’s towing task force: consultation and research, released March 2, 2021. [^4]: Ontario Press Release dated June 29, 2020. [^5]: Director of Towing and Vehicle Storage Standards, appointed under s. 49 of the Act. [^6]: Its predecessor, O.Reg. 417/22, had been approved as well, but was replaced by O. Reg. 167/23 before it came into force. The impugned provisions appeared in the earlier regulation as well, and the main submissions were made at that earlier stage. [^7]: There are also parallel provisions in ss. 9 and 16 precluding the issuance of a certificate when the qualifications and requirements are not met. [^8]: In the applicants’ factum, they also challenge ss. 8 3., 9(1)1, 15(4) and 16(1)1 of the Regulations, as they bring in s. 2(d)(i) but in oral argument, the focus was on s. 2(d)(i).