In a guest post, Barry W Bussey, general counsel to the Canadian Council of Christian Charities, looks at a recent decision on the Charter of Rights.
“Charter values are not Charter rights by another name or in a different setting; they are a different juridical concept,” wrote Justice Bradley Miller in the recent Ontario Court of Appeal’s decision in McKitty v Hayani 2019 ONCA 805.
This is but the latest criticism of the controversial use of “Charter values” in Canadian jurisprudence. “Charter values” are “values” derived from the Canadian Charter by a judge who then applies them to the case at hand. They are not listed in the Charter and are often at odds with the enumerated rights of the Charter itself. Hence the controversy over their use. The heated debate over this dubious concept reaches all the way to the Supreme Court of Canada, as revealed in its June 15, 2018, Trinity Western University law school decisions. In those two decisions, 4 of the 9 judges raised concerns about the efficacy of the concept in constitutional litigation.
In the McKitty decision, Justice Miller decided to clear up the methodological confusion that the lower court’s decision had exhibited. McKitty was a 27-year-old who was on life support. While her body was artificially alive, she was declared brain-dead. The parents argued that their daughter’s religious freedom rights would be denied if she were to be removed from life support because, in their religious view, she was still a live human being with Charter rights. The lower court held the Charter did not apply because the doctor being sued was not a state actor; and because the Charter was never meant to protect those who are brain-dead. Shortly after the arguments were made, on the appeal, McKitty died, making the case moot.
Even so, Justice Miller held that it was an important opportunity to address the analytical errors of the lower court. Miller objected to the lower court’s conclusion that McKitty
“could not come within the meaning of ‘everyone’” described in s.2 of the Charter, because she was incapable of exercising her Charter rights. This argument was too broad. Miller pointed out that there are “many persons who, by reason of immaturity, decline, or other physical or mental impairment, have little or no present ability to exercise many … Charter rights.”
This does not diminish or remove their status under the Charter. Indeed, some Charter rights do not require any individual act but flow from being human, such as the right not to be deprived of life. Further, Miller pointed out that constitutional jurisprudence applied a “presumption of membership in the class … who is to benefit from the Charter,” as was the approach to the constitution in the “Person’s Case”, Henrietta Muir Edwards & Ors v The Attorney General of Canada (Canada)  UKPC 86.
In challenging the common law definition of death to accommodate the appellant’s religious view, the application judge relied also on the “Charter values” argument. Courts have recognized that in reforming the common law, “Charter values” can be invoked in private litigation “to guide incremental change.” The lower court erred in describing the religious claim at stake in the case as that of protecting worship and the object of belief. However, Justice Miller understood the appellant’s religious claim to be that a human being remains alive until the heart stops beating and that one must not intentionally kill a human person, “including self-killing and acquiescing in one’s own killing”; therefore, to withdraw life support of a brain-dead person whose heart is still beating is intentional killing; and to breach this is to defy God.
Miller observed that litigants may argue that a common-law principle is inadequate and must be changed. Various arguments are used such as the moral norms, principles, and aspects of well-being behind constitutional texts such as the Charter. These are referred to as “Charter values.” But, while a Charter value “may be significant to judicial reasoning, it does not have indefeasible priority over completing considerations”. They don’t extend Charter rights application by imposing Charter duties on private parties. While they supply reasons to change the common law, they cannot be used to invalidate legislation. They are a “catalogue” of human goods which judges use in legal reasoning, “all of which were known to the common law prior” to the Charter, though “imperfectly realized.” The problem is that “the selection of Charter values and their prioritization are both unavoidably idiosyncratic.” They “are not taken from a canonical text.” With no methodology to guide their formulated abstraction or to resolve issues of priority when they conflict, they must “be approached with careful attention to the rules that govern their use in different contexts.”
Justice Miller observed that there are five contexts in which appeals to “Charter values” have been made: common law; statutory interpretation; judicial and administrative discretion; Charter rights limitation analysis in administrative law; and, Charter rights limitations analysis in Charter challenges to legislation. There are different rules for how “Charter values” are used in each context.
In the common law context, courts have no “wholesale power” like legislatures to change the law but may only modify the law by exercising power “interstitially.” They ought only to reform what is necessary, leaving the far-reaching changes to the legislatures. While it may appear that the application of “Charter values” can provide a useful constraint on judicial power, the concept is so “extremely broad” that it offers little guidance. There is no canonical formulation of “Charter values”; instead, they deal with human goods derived from the rights and freedoms and principles of a free and democratic society and more abstract notions such as “human dignity.”
To apply “Charter values” to the common law, the courts must first “identify the core rationales or purposes behind the adoption of the Charter right” in furthering human well-being. Second, they must consider if the impugned common law “adequately promotes or protects these goods” in light of the competing goods. Miller points out that a “Charter value” does not trump an enumerated Charter right. The opposite is true. To change the common law, it is “the salience of the reason” that matters, “not the label that is attached to it”.
The lower court, said Miller, failed to address the reason behind the Charter’s respect of conscientious religious beliefs. It failed to explain how the manifestation of the belief was important from the perspective of the claimant. Further, the lower court’s identification and balancing of certain competing “values” (such as the need for certainty, predictability and a clear legal definition of death; concern over privileging some religions over others; the health-care costs of the appellant and the impact on the organ donation system) against a narrowly defined religious interest, only highlighted to Miller the idiosyncratic weighing of “Charter values” the lower court went through. For Miller, it “amply illustrates the difficulties inherent in using Charter values to amend the common law.”
Given the mootness of the case, the Court of Appeal declined to amend the common law to accommodate for a person’s religious convictions regarding neurological criteria for death. That is left for another day. However, the Court has done us a service by highlighting the perennial problem of “Charter values.”
Upon reflection, it is my view that this case is but a further indication that the entire “Charter values” project is an exercise of futility. It is more and more apparent that the real problem with this malleable doctrine is the latitude given to decision-makers to decide cases subjectively without a legal anchor.
To be blunt, it is nothing less than a direct attack on the rule of law. Imagine, as noted by Justice Miller, there are five different contexts that Charter values are being used in, each with their own distinctive rules of application. Rather than simplifying the law, this is exacerbating an already bloated rights analysis in trying to determine justice for the aggrieved party who has suffered loss because his or her enumerated rights were infringed.
While Justice Miller has sought to apply the metaphorical brake to the runaway train, I fear it is not enough. This doctrine subverts the very purpose of the Charter. It makes a mockery of the enumerated rights that are being ignored based on a decision-maker’s whim of what they perceive to be just. It muddles an already complicated process by adding the complexity of five different contextual analyses – where, exactly, are the lines of demarcation between each of the five? Will there be any carry-over of one principle of evaluation to another context, and if not, why?
It seems to me that we need to get back to basics. Returning to Justice Rand’s “original freedoms” in the pre-Charter Saumur v City of Quebec  2 SCR 299 would be of greater utility than the current preoccupation with “Charter values.” Rand understood history, philosophy and religion. We have lost this understanding in our current legal framework. We are seeking to “move the law forward” in radical ways that have little connection to the deeper realities of human existence. Reliance on “Charter values” is not a way forward, but a way into legal analytical gridlock. Personal preference becomes more persuasive than sound, legal reasoning; decision-makers are enabled to justify arbitrary decisions based on power rather than precedent. In short, it replaces the rule of law with the tyranny of judicial idiosyncrasy.
Miller’s decision is admirable in trying to trim the unwieldy legal bushes that have grown up around our constitutional tree. But more needs to be done: the “Charter value” doctrine needs to be pulled up by the roots and cast out of constitutional discourse altogether. With the weeds removed we can then get back to the enumerated rights of the Constitution itself.
Barry W Bussey
Cite this article as: Barry W Bussey, “Charter Values are not Charter Rights by another name: McKitty” in Law & Religion UK, 14 October 2019,