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.