Injunctions In The Charter Context: Part Two

Yesterday, I posted a brief backgrounder on injunctions and the special case which presents when the Charter provides the context. Today, I will discuss how courts apply the three step injunction test where the exercise of Charter rights results in disobedience of the a purportedly unconstitutional law. In those cases, the applicant for the injunction is the government, who according to case law, is the "protector of public rights and the public interest."

Step one: There must be a serious case to be tried. This step is typically easy to fulfill as most injunctions involve serious unresolved issues. Certainly, in the case of a Charter violation from the application and enforcement of laws, there is a serious matter to determine.

Step two: Is there irreparable harm caused if the application is refused? In the civil context, it is a question of monetary compensation, but in a Charter violation harm is difficult, if not impossible, to quantify. As a result, this step, is also easy to fulfill.

Step three: On a balance of convenience, which party suffers greater harm by the making of the order? In this step, the court considers the actual Charter harm or breach complained of by the claimants. However, case law also suggests deference must be given to the government's legislation, which necessitates obedience to its precepts until the constitutional validty is determined. Thus, it has been argued, that the court should be reluctant to refuse an injunction or order to conform with the law.

Some cases have refused to give such deference in a Charter case, particularly where constitutionality of the legislation is at issue and where fundamental rights, such as freedom of expression, are at risk. Indeed, it can be argued that both the government and the Charter claimants are acting within the public interest: the government in upholding law and the claimants for protecting fundamental rights important to all. 

Now that the three step injunction analysis in the Charter context is clarified, tomorrow, I will apply this test to the occupy movement.



Injunctions and the Charter of Rights and Freedoms

It is difficult to read an article on the occupy movement and not read a reference to an injunction. An injunction, is a legal remedy, whereby a court orders a party to refrain from acting in a particular way that infringes the rights of another party. Although usually negative in aspect, a mandatory injunction can require the rights violator to take positive steps to respect the rights of another party. Typically, injunctions are only granted in exceptional circumstances and only when monetary damages fail to remedy the situation.

When constitutional rights are at issue, an injunction may be ordered to ensure a Charter violation is not repeated. In cases involving constitutionally suspect legislation, injunctions have also been used to order a party to obey the legislation until the validity of the law has been fully determined. Thus, injunctive relief has been sought by the government where sports' bars refused to comply with a City by-law banning smoking in restaurants. It has also been used to prohibit homeless people from erecting tents in public parks. Most recently, as we read in the media almost daily, injunctive relief has been requested to prohibit the occupy movement from occupying public space by erecting tents and by staying in the public areas overnight.

The test for whether or not an injunction should be granted, similar to a stay of proceedings application, is articulated in the Supreme Court of Canada RJR - MacDonald case. The three-step determination is made on the basis of the following:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.  Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.  Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.  

Additionally, as the issue is whether or not the law is constitutionally valid, a court considering an injunction in a Charter context must be mindful of the possible continuation of Charter breaches should the injunction be allowed. As briefly touched upon in my previous blog "Teachable Moments" And The Charter of Rights and Freedoms, in a case involving Charter rights, Charter values imbue and colour the legal principles. In those instances, the black letter of the law transforms into a kaleidoscope of possibilities with our fundamental values and beliefs providing the backdrop. It is in this heady context that the court must apply the three-step injunction analysis.

In tomorrow's blog, I will take this test and review it in light of the Charter possibilities to explain how injunctive relief looks in the kaleidoscope of Charter values and shed some light on the injunctions granted and still being sought against the occupy movement.