CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
10.8 Human Rights Canada has a constitutionally entrenched bill of rights, the Canadian Charter of Rights and Freedoms. (See 3.1 Challenging Primary Leg- islation .) These rights are not absolute. Gov - ernments may infringe them if those limits are demonstrably justifiable, based on a proportion - ality test. In addition, governments may shield legislation from constitutional challenge under most Charter rights under the notwithstanding clause. 10.9 Proportionality Proportionality is not an independent head of judicial review. However, limitations on rights enshrined by the Canadian Charter of Rights and Freedoms are only justifiable if they meet a proportionality test. Moreover, executive deci - sions that contravene Charter values also must achieve a proportionate balancing of those val - ues and the government’s interests. In the con - text of Charter values, reasonableness and pro - Executive decisions can also be challenged under tort, under the law of negligence, but modified for public authorities. There is a two- step test: first, whether the relationship between the plaintiff and the public authority gives rise to a prima facie duty of care; and, second, whether there are policy reasons why the prima facie duty of care should not be recognised. While policy decisions are immune from tort liability unless they are irrational, operational decisions are not. 10.11Exempt Decisions portionality are synonymous. 10.10Additional Grounds Certain exercises of the prerogative power are non-justiciable and beyond the scope of judi - cial review because they concern matters of high policy. These include, for example, the acqui - sition and exercise of sovereignty (eg, execu -
tive decisions to enter into aboriginal treaties, the assertion of Crown sovereignty over Cana - dian territory) and foreign affairs (eg, the mak - ing of treaties). However, Canadian public law lacks a political questions doctrine, and instead addresses those concerns through deference as opposed to non-reviewability. Moreover, this is an evolving area of law, with the courts being invited to expand the boundaries of justiciability. In recent decisions, appeal courts have asserted jurisdiction over climate change policy, and have been invited to assert jurisdiction over the Prime Minister’s advice to the Governor General to pro - rogue Parliament (like the UK Supreme Court did in Miller II ). 11. Defence 11.1 Timing and Grounds of Defence In applications for judicial review, executive defendants disclose their grounds of defence in their responding legal submissions. However, the grounds of defence will usually be apparent in any responding affidavits. 12. Interim Relief 12.1 Common Forms of Interim Relief Canadian courts can order interlocutory relief in applications for judicial review. This relief can take the form of mandatory and prohibitive injunctions, such as stays. The moving party must establish that there is a serious issue to be tried in its underlying proceeding. In addition, the moving party must show that it will suffer irreparable harm if the interlocutory injunction is not granted. Third, the moving party must estab - lish that the balance of convenience favours the granting of interlocutory relief, which requires a balancing of which party would suffer greater
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