Human Rights - SCC

Two appeals from the Quebec Court of Appeal concerning whether the statutory exclusion of first-level managers from Quebec's Labour Code labour relations regime infringed freedom of association under s. 2(d) of the Canadian Charter and s. 3 of the Quebec Charter.

The majority (Jamal J., Karakatsanis, Kasirer and O'Bonsawin JJ.) held that there is one unified framework under s. 2(d) — the two-part substantial interference test originating in Dunmore — and that the Dunmore factors do not constitute a separate elevated-threshold test for positive rights claims.

Applying that framework, the Court found no substantial interference because the respondent association had managed to organize, voluntarily bargain, and had access to court remedies, with no causal link shown between the legislative exclusion and the employer's conduct.

Wagner C.J. and Côté J. concurred in the result but maintained that the distinct three-step Dunmore framework applies to positive rights claims.

Rowe J. also concurred, agreeing the Dunmore framework should be preserved for positive claims.

Appeals allowed.

A citizen of a self-governing Indigenous First Nation challenged a residency requirement in the First Nation's constitution requiring its Chief and Councillors to reside on settlement land or relocate there within 14 days of election.

The majority held that the Charter applies to the First Nation as a government by nature under s. 32(1), that the residency requirement constitutes a prima facie infringement of the appellant's s. 15(1) equality right, but that s. 25 of the Charter shields the requirement from abrogation or derogation because it protects Indigenous difference tied to ancient land-based governance practices.

Martin and O'Bonsawin JJ. dissented on the appeal, finding the s. 15(1) claim must succeed and s. 25 does not shield internal governance rules from Charter claims brought by community members.

Rowe J. dissented on the cross-appeal, finding the Charter does not apply to the First Nation's exercise of its inherent self-government right.

Five non-rights holder parents applied to the Minister to exercise discretion to admit their children to a French first language education program in the Northwest Territories, with the support of the francophone school board.

The Minister denied each application, finding the parents did not meet the categories established in the ministerial directive.

The SCC held that the Minister was required not only to consider s. 23 of the Charter but to conduct a proportionate balancing of the values underlying that provision — including preservation and development of the minority language community — against the government's interests.

Applying the Doré framework, the Court found the decisions unreasonable because the Minister gave disproportionate weight to consistency and cost, and insufficient weight to pedagogical requirements and the remedial purpose of s. 23.

The appeal was allowed and the Court of Appeal orders set aside.

The appellant media organisation challenged a publication ban issued by the Manitoba Court of Appeal over an affidavit filed in wrongful conviction proceedings.

The affidavit concerned the death of a witness and contained highly sensitive personal information about the witness's spouse.

Applying the three-branch test from Sherman Estate v. Donovan, 2021 SCC 25, the Court held that court openness posed a serious risk to the spouse's dignity as an important public interest, the ban was necessary and not overbroad, and the benefits of the ban significantly outweighed its minimal effect on free expression and the open court principle.

The affidavit was not admitted as evidence and played no role in determining that a wrongful conviction had occurred.

The appellants challenged the constitutional validity of s. 159.3 of the Immigration and Refugee Protection Regulations, which designates the United States as a safe third country, rendering refugee claimants arriving at Canadian land ports of entry from the United States ineligible to have their claims considered in Canada.

The Court held that s. 159.3 is not ultra vires the IRPA, as the validity of a regulation is assessed at the time of promulgation.

The Court further held that s. 159.3 does not breach s. 7 of the Charter: while some effects on liberty and security of the person are causally connected to Canadian state action, the legislative scheme is neither overbroad nor grossly disproportionate given the availability of statutory safety valves that guard against real and not speculative risks of refoulement.

The s. 15 equality rights challenge, based on the disproportionate impact on women fearing gender-based persecution, was remitted to the Federal Court for determination on the merits.

A school board trustee sued a teachers' union president for defamation arising from public statements characterizing the trustee's online posts opposing a provincial sexual orientation and gender identity educational initiative as bigoted, transphobic, and hateful.

The defendant applied to dismiss the action under British Columbia's anti-SLAPP statute, the Protection of Public Participation Act.

The chambers judge dismissed the defamation action, finding a valid fair comment defence and that the public interest in protecting the defendant's counter-speech outweighed the limited harm to the plaintiff.

The Court of Appeal reinstated the action.

The Supreme Court of Canada majority restored the chambers judge's dismissal order, holding that the plaintiff failed to adduce sufficient evidence of serious harm causally linked to the defendant's statements, and that the defendant's expression as counter-speech on a matter of public interest relating to a marginalized group was deserving of significant protection under the public interest weighing exercise in s. 4(2)(b) of the PPPA.

Côté J. dissented, concluding the plaintiff was entitled to a day in court and that the chambers judge erred in failing to consider aggravating factors to harm and the quality of the expression at issue.

The Crown appealed from a Court of Appeal decision striking down Criminal Code provisions (ss. 742.1(c) and 742.1(e)(ii)) that made conditional sentences unavailable for certain serious offences, as applied to an Indigenous offender convicted of importing cocaine.

The majority (5-4) allowed the appeal, restoring the 18-month custodial sentence, holding that the respondent failed to satisfy step one of the s. 15(1) Charter analysis by not demonstrating that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders relative to non-Indigenous offenders.

The majority also held the provisions were not overbroad under s. 7 because maximum sentences are a reasonable proxy for offence seriousness.

The dissent would have dismissed the appeal, finding the provisions both overbroad under s. 7 and discriminatory against Indigenous offenders under s. 15(1) by impairing the remedial Gladue framework.

The appellant was convicted of two counts of sexual assault arising from a single incident and was subjected to mandatory lifetime registration under SOIRA pursuant to ss. 490.012 and 490.013(2.1) of the Criminal Code, despite a judicial finding that he was unlikely to reoffend.

The majority held both provisions overbroad under s. 7 of the Charter, as mandatory registration captures offenders not at increased recidivism risk and lifetime registration applies even where multiple offences arose from a single transaction without an intervening conviction.

The Crown failed to justify the provisions under s. 1, as neither minimally impairing alternatives nor evidence of salutary effects were demonstrated.

The declaration for s. 490.012 was suspended one year and applied prospectively, while the declaration for s. 490.013(2.1) was immediate and retroactive.

Four judges dissented in part, finding s. 490.012 constitutional given the heightened recidivism risk of all convicted sex offenders and the history of judicial misuse of discretion.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

A not-for-profit disability rights organization sought public interest standing to challenge the constitutionality of British Columbia's mental health legislation permitting forced psychiatric treatment without patient consent.

After individual co-plaintiffs withdrew, the chambers judge dismissed the claim for lack of standing; the Court of Appeal remitted the matter for fresh consideration.

The Supreme Court dismissed the appeal, holding that legality and access to justice do not merit particular weight in the Downtown Eastside framework and that a directly affected individual co-plaintiff is not required for a public interest litigant to establish a sufficient factual setting.

Applying the three Downtown Eastside factors cumulatively, the Court granted the organization public interest standing and awarded special costs on a full indemnity basis throughout.

A professional comedian appealed a discrimination finding after a human rights tribunal held that his comedy routines mocking a public figure with a disability violated the right to the safeguard of dignity under the Quebec Charter.

The majority of the Supreme Court allowed the appeal, holding that the three elements of a discrimination claim under s. 10 of the Quebec Charter had not been established.

The majority found that the distinction was not based on a prohibited ground since the comedian had not targeted the complainant because of his disability but because he was a public figure.

Even if based on a prohibited ground, the majority held that the comedian's comments did not incite others to vilify the complainant or to detest his humanity, nor were they likely to lead to discriminatory treatment.

Four dissenting justices would have dismissed the appeal, finding that the comments constituted a discriminatory interference with the complainant's right to dignity as a child with a disability whose harm was broadly disseminated and deeply harmful.

A unionized health authority employee was suspended for attending work under the influence of alcohol.

After disclosing her alcohol addiction and refusing a last-chance abstinence agreement, the employer terminated her employment; her union grieved and she was reinstated on similar terms, then terminated again for allegedly breaching those terms.

The employee filed a human rights complaint alleging failure to accommodate her disability, and a human rights adjudicator assumed jurisdiction and found discrimination.

The majority held that Manitoba's mandatory dispute resolution clause in The Labour Relations Act confers exclusive jurisdiction on the labour arbitrator over all disputes arising from the collective agreement, and that The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the human rights adjudicator over such disputes.

The appeal was allowed and the reviewing judge's order setting aside the adjudicator's decision was reinstated.

A young person convicted of sexual assault appealed on the basis that the verdict was unreasonable, arguing the trial judge illogically accepted selective parts of the accused's evidence while rejecting others due to intoxication.

The majority held the verdict was reasonable, finding the trial judge provided sound reasons for accepting some portions of the accused's evidence while rejecting others.

The appellant also challenged the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which denies young persons the automatic appeal rights available to adults under s. 691 of the Criminal Code.

The majority upheld s. 37(10) as consistent with ss. 7 and 15 of the Charter, while Abella J. (with Karakatsanis and Martin JJ.) found it to be an unjustified breach of s. 15.

The appeal was dismissed, with Côté J. dissenting on the reasonableness of the verdict and declining to address the constitutional questions as moot.

An individual found not criminally responsible on account of mental disorder in respect of sexual offences, and subsequently granted an absolute discharge by the provincial review board, challenged the provincial sex offender registry regime on equality grounds.

The majority held that the regime drew discriminatory distinctions on the basis of mental disability by denying those found not criminally responsible any opportunity for exemption or removal from the registry, in contrast to mechanisms available to those found guilty, and that the infringement was not justified under section 1.

The Court affirmed a tailored declaration of invalidity limited to those found not criminally responsible who had received an absolute discharge, suspended for twelve months, with the respondent granted an individual exemption from the suspension.

The concurring reasons of Rowe J. would have reaffirmed the Schachter framework for suspended declarations as grounded in rule-of-law considerations rather than adopting the majority's principled-discretion approach.

The partial dissent of Côté and Brown JJ. agreed on the section 15(1) breach and the suspension but would have grounded the suspension solely in the rule of law and declined to grant an individual exemption, which in their view exceeded the institutional competence of the Court and raised horizontal unfairness concerns.

The Crown appealed a Court of Appeal decision setting aside the accused's conviction for sexual assault of a complainant with an intellectual and developmental disability, on the basis that the trial judge's reasons were insufficient.

The Court of Appeal majority found that the trial judge had failed to address the reliability of the complainant's evidence in light of expert evidence regarding her suggestibility, and had failed to provide reasons for rejecting the defence evidence.

The dissenting judge of the Court of Appeal held that the trial judge's reasons permitted meaningful appellate review.

The Supreme Court allowed the appeal, restoring the conviction, and cautioned that courts should focus on the individual's actual capacities rather than over-relying on expert evidence attributing general characteristics to persons with disabilities, as such over-reliance can perpetuate harmful myths and stereotypes and create barriers to access to justice.

The appellants sought to restore mandatory minimum fines imposed on a corporation under Quebec's Building Act after the Court of Appeal held that s. 12 of the Canadian Charter of Rights and Freedoms could apply to corporations.

All nine justices of the Supreme Court of Canada allowed the appeal, unanimously concluding that s. 12 does not protect corporations from cruel and unusual treatment or punishment.

The majority, writing jointly through Brown and Rowe JJ., held that the text 'cruel and unusual' inherently denotes a protection only human beings can enjoy, and that the concept of human dignity anchoring s. 12 is inextricably linked to natural persons.

Abella J., concurring with the result on behalf of three justices, reached the same conclusion through a broader purposive analysis emphasising the human-dignity foundation of s. 12, while cautioning against placing undue primacy on textual analysis or erecting barriers to the use of international and comparative law sources.

Kasirer J. concurred briefly, agreeing with the dissenting Court of Appeal judge that it would distort the ordinary meaning of the word 'cruel' to say that a corporate entity could be subjected to it.

Three retired female members of the Royal Canadian Mounted Police commenced a constitutional application challenging pension provisions that prevented job-sharing members from purchasing full-time pension credits for their service, a benefit available to members on unpaid leave.

The majority of the Court held that the pension plan's treatment of job-sharers created a distinction based on the enumerated ground of sex, as the program was disproportionately composed of women with childcare responsibilities.

The Court found that this arrangement perpetuated a long-standing source of economic disadvantage to women — gender biases embedded in pension plans historically designed for full-time male employees — thereby establishing a prima facie breach of s. 15(1) of the Canadian Charter of Rights and Freedoms.

The Attorney General failed to demonstrate a pressing and substantial objective capable of justifying the limitation under s. 1 of the Charter.

The Court granted a declaration that the inability of full-time RCMP members who temporarily reduced working hours under a job-sharing agreement to purchase full-time pension credit for that service violated their s. 15(1) equality rights.

The appeal was allowed with costs throughout, with three justices dissenting on the application of the equality framework and the sufficiency of causal nexus.

The appellant land developer brought a $6 million breach of contract action against a not-for-profit environmental association and its members, alleging that the association's president had breached a settlement agreement by testifying before the Ontario Municipal Board regarding the ecological impact of the appellant's proposed subdivision development.

The respondents brought a pre-trial motion under s. 137.1 of the Courts of Justice Act to dismiss the action as a strategic lawsuit against public participation.

The Court unanimously dismissed the appeal, holding that the respondents met the threshold burden under s. 137.1(3) and that the appellant failed to satisfy either the merits-based hurdle under s. 137.1(4)(a) or the public interest weighing exercise under s. 137.1(4)(b).

The Court provided comprehensive guidance on the proper interpretation and application of Ontario's anti-SLAPP framework, clarifying the standards of 'satisfies,' 'arises from,' 'substantial merit,' and the public interest weighing exercise.

The decision affirms that freedom of expression and public participation in democratic processes are fundamental values that the anti-SLAPP legislation was enacted to protect.

The appellant challenged the Quebec Court of Appeal's opinion that ss. 1 to 7 of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, exceeded Parliament's criminal law power under s. 91(27) of the Constitution Act, 1867.

The majority held that the pith and substance of the impugned provisions — prohibiting compelled genetic testing and non-consensual use or disclosure of genetic test results in connection with contracting and the provision of goods and services — was a valid exercise of the criminal law power, as the provisions respond to a reasoned apprehension of harm to autonomy, privacy, equality, and public health.

A concurring minority agreed on the result but characterized the pith and substance more narrowly as protecting health by giving individuals control over the intimate information revealed by genetic testing.

The dissent would have dismissed the appeal on the basis that the impugned provisions lacked a well-defined threat and adequate evidentiary foundation to constitute a valid criminal law purpose, falling instead within provincial jurisdiction over property and civil rights under s. 92(13).

The appellants, the sole French-language school board in British Columbia and associated parents' federation and individual rights holders, brought a constitutional challenge alleging systemic underfunding of minority language education and inadequate facilities in numerous communities, contrary to s. 23 of the Canadian Charter of Rights and Freedoms.

The majority clarified the sliding-scale framework for situating the number of minority language students so as to determine the level of educational services warranted, introducing a province-wide comparative presumption of pedagogical and cost appropriateness when majority language schools of comparable size exist elsewhere in the province.

The majority further held that substantive equivalence — not proportionality — is the applicable standard for assessing the quality of the educational experience throughout the sliding scale, and that infringements of s. 23 are subject to a particularly stringent justification standard under s. 1, such that the fair and rational allocation of public funds does not constitute a pressing and substantial objective.

The Court held that Mackin immunity from Charter damages does not extend to government policies infringing s. 23, and restored the trial judge's award of $6 million for the transportation funding freeze and ordered $1.1 million in additional damages for the Annual Facilities Grant Rural Factor breach.

Brown and Rowe JJ. dissented in part, rejecting the province-wide presumption as inconsistent with settled jurisprudence and as compressing the middle of the sliding scale, though agreeing on substantive equivalence, the invalidity of a purely financial s. 1 objective, and the appropriateness of Charter damages in the s. 23 context.