Back to school

I was wrong. The Court’s framework summer had one last peak left. I just went on vacation and missed it. Before coming down in its most recent judgments, the Court in York Region School District Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 approached its early-term highs: 40 “frameworks” in 143 paragraphs (27.9 FW/100¶).

The updated 2024 league table shows three distinct tiers of framework use in constitutional cases: FW>20.0 (red), 20>FW>10 (yellow), and 10>FW (black). 

Case	FW/100¶
Société des Casinos	44.6
York Region School District	27.9
R. v. Brunelle	23.1
R. v. Tayo Tompouba	16.4
Reference re An Act	12.4
Dickson	11.2
Power	3.6
Restoule	3.5
R. v. Edwards	1.4
Named Person v. CBC	1.1
Ontario (AG) v. Ontario (ICP)	0.0
Shot Both Sides	0.0

The frameworks in York Region were spread somewhat evenly across Rowe J.’s reasons for the majority (25.2 FW/100¶) and the concurring reasons from Karakatsanis and Martin JJ. (36.1 FW/100¶). Everyone is using them. The rise in frameworks isn’t just a statistical quirk or a rhetorical fixation of one or two justices (or clerks). It is a real trend. Is it also a problem?

Frameworks for everything

As previously shown, we can learn more about frameworks by shifting from a quantitative to a qualitative lens. In York Region, the majority displayed at least three different modes of constitutional reasoning and deployed frameworks in each of those modes:

1. Structural analysis (for standard of review)
   • “The determination of constitutionality calls on the court to exercise its unique role as the interpreter and guardian of the Constitution. Courts must provide the last word on the issue because the delimitation of the scope of constitutional guarantees that Canadians enjoy cannot vary “depending on how the state has chosen to delegate and wield its power”.” (¶64)
   • The Court invoked “the Vavilov framework” (¶94) and approvingly referenced a lower court judgment that applied “the framework under Doré” (¶43).
2. Interpretation (of s. 32 Charter)
   • When considering whether the Charter applies to Ontario public school boards, the majority actually considered constitutional text
     • It reproduced s. 32 of the Charter when considering the meaning of “government”; and
     • It mentioned s. 23 of the Charter and s. 93 of the Constitution Act, 1867 to support the “unique constitutional quality” of public education.
   • But it also applied “the Eldridge framework” (¶¶73, 74, 78), as did the majority in Dickson (¶62)
     • In doing so, the York Region majority made an interesting comment: “The purpose of the Eldridge framework is to interpret s. 32(1) so as to ensure that the federal and provincial governments do not evade their constitutional responsibilities under the Charter by delegating governmental functions to non-governmental entities, for example private enterprises (para. 40).”
     • I would have thought that was the purpose of s. 32 and the Court had developed the framework to serve and realize that purpose.
     • Charter provisions have purposes (they are both the premise and the product of purposive interpretation), but what would it mean for the frameworks that implement Charter provisions to also have purposes?
3. Application of precedent (for s. 8 Charter)
   • Unlike when it interpreted s. 32, the majority did not consider any constitutional text when analyzing the s. 8 right at stake (admittedly in obiter)
     • Nor did the concurrence. The text of s. 8 does not appear in the York Region judgment.
   • Instead, the majority adapted and applied “the s. 8 framework” (¶98) from the criminal law to the employment context
     • The majority also referred to this framework as “the analysis” (¶¶100, 101), so it is clearly a secondary rather than a primary framework
   • This s. 8 framework has two steps, each of which “calls for a contextual assessment” (¶104):
     • Whether there is a reasonable expectation of privacy
       • A contextual analysis with four lines of inquiry to “serve as a guide” (¶102):
         • an examination of the subject matter of the search;
         • a determination as to whether the claimant had a direct interest in the subject matter;
         • an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
         • an assessment as to whether this subjective expectation of privacy was objectively reasonable
     • Whether the search and seizure is reasonable
       • This step consists of its own three-part framework: the Collins framework (¶104)
       • A search or seizure is reasonable if
         • It is authorized by law;
         • The law itself is reasonable; and
         • The manner in which the search or seizure was carried out is reasonable.

Frameworks within frameworks (within frameworks?). Maybe it really is frameworks all the way down.

Prophylactic frameworks

All the way down into what? Frameworks are heuristics. They are pragmatic. They render slippery concepts tractable and indeterminate texts manageable.

In place of interests, values, and principles, frameworks offer steps, multi-part tests, and “lines of inquiry.” Frameworks routinize analysis. Frameworks get applied. They suggest the Court’s primary audience is not “the public” (whatever that may mean) or even the parties to the case. Rather, the Court is writing for the technicians – lawyers, lower court judges, administrative decision-makers – who use the frameworks.

Frameworks are prophylactic: they allow us to use the Constitution without actually engaging with what we might think of as “the Constitution,” whether that is the text, the “basic architecture”, or the underlying interests, values, and principles.

We use frameworks instead of the Constitution. When we use a framework, we rely on its relationship with the Constitution (e.g. we assume the Collins framework implements s. 8 of the Charter), which means we do not doubt or contest that relationship.

As framework usage rises, we should pay more attention to the relationship between frameworks and (a) the interests, values, principles, and purposes that underlie constitutional text or (b) that text and the linguistic, philosophic, and historical contexts the Court uses to identify those fundamental constitutional concepts.

This approach is neither naïve nor pastiche. I am trying to take the Court seriously. These are the words it uses, over and over and over again. Unfortunately, the proliferation of frameworks obscures serious conceptual confusion.

Conceptual complications

Consider, for example, a brief survey of the cases in which the Court developed its s. 8 framework. These cases illustrate the nature and magnitude of this challenge, both for s. 8 and for the entire Charter. The interests, values, and principles underlying each Charter provision should and do vary. But the basic concepts and the relationships among those concepts must remain constant, or else the standard model of the Constitution on which purposive interpretation relies is in jeopardy.

1. Hunter v. Southam, [1984] 2 SCR 145: the purpose underlying a Charter provision is to protect certain interests^[1], and s. 8 specifically requires a balance to be struck between the public’s interest in privacy and the government’s interest in law enforcement^[2]
2. R. v. McKinlay Transport Ltd., [1990] 1 SCR 627 (Wilson J., on behalf of at least 3/5 sitting justices): s. 8 has multiple purposes^[3], s. 8 protects underlying values (rather than interests), and the “individual’s interest in privacy” protected in Hunter was one of those underlying values^[4]
3. R. v. Plant, [1993] 3 SCR 281: the s. 8 interests balanced against the state interest in law enforcement are “societal interests” in protecting the underlying values of dignity, integrity, and autonomy^[5]
4. Comitie Paritaire de l’industrie de la chemise v. Potash, [1994] 2 SCR 406 (majority, citing a minority opinion from another case): the balance struck under s. 8 is between individual rights and the interests of society, which means rights and interests are not merely transposable but commensurable^[6]
5. R v. Tessling: privacy is the organizing principle for the Court’s purposive approach to s. 8, which enables the Court to discern a range of constitutionally protected privacy interests^[7]
6. R. v. Kang-Brown, 2008 SCC 18 (four-justice plurality opinion): s. 8 “expresses” (rather than fosters or protects) a core value of our society: “respect for personal privacy and autonomy”^[8]
7. R. v. Patrick, [2009] 1 SCR 579: s. 8 requires a balance “between privacy and the legitimate demands of law enforcement” that is apparently agnostic to whether they are rights, interests, or values^[9], but s. 8 also protects certain values “in relation to privacy”^[10]
8. R v. Gomboc, [2010] 3 SCR 211: consolidates the “Applicable Legal Principles” for the s. 8 right to privacy^[11]
9. R. v. Cole, 2012 SCC 53: further consolidates the s. 8 analysis, but refers instead to the text and the right “to be secure against unreasonable search or seizure”^[12]

In just these nine cases, privacy appears as a right (Hunter, 162; Gomboc, ¶17), an interest (Tessling, ¶20; Cole, ¶34), a value (R. v. Kang-Brown, ¶8), and an organizing principle (Tessling, ¶19). Maybe privacy is all of those things. Maybe the constitutional quantum realm – the dominion beneath or beyond the text – is weirder than we thought. Or maybe it’s just a mess.

The general conceptual structure seems to go something like this:

Generic Structure	Section 8
The constitutional Text	“Everyone has the right to be secure against unreasonable search or seizure”
establishes a Right	To privacy (or to be secure against unreasonable search or seizure)
which serves a Purpose (or more than one Purpose)	To protect privacy
which is to protect one or more underlying Interests, which can be parsed into finer constituent Interests (or to protect a Value)	Privacy: personal, territorial, informational
in protecting certain societal Values	Dignity, integrity, and autonomy  (or maybe respect for personal privacy and autonomy)
all of which can, at least for some Charter provisions, be understood and iteratively refined by reference to an Organizing Principle.	Privacy

This conceptual model is…complicated. It has evolved over time. It also allows the Court to generate an ever-more subtle and sophisticated account of the “public’s interest” and the “societal values” at stake before (a) they get balanced against “the state interest in law enforcement” and (b) any resulting infringement is subject to justification analysis under s. 1. Both of those steps in the Charter framework are beyond the scope of this post. 

Even this quick survey suggests further interesting lines of inquiry:

• How does the Court use context (e.g. the totality of the circumstances, R. v. Edwards, [1996] 1 SCR 128) and legal history (e.g. Tessling) to discern public interests and societal values?
• More concretely, how do courts determine just how much value “Canadian society” places on the values of privacy, autonomy, and dignity (R. v. Jones, 2017 SCC 60, ¶29)?
• What can we learn about the substantive content and the conceptual form of our Constitution from the realization that both s. 8 and the principle of fundamental justice against self-incrimination recognized under s. 7 are grounded on those same three values (ibid.)?

Frameworks keep lawyers and courts away from these issues. For better or worse, they have a prophylactic function. They enable us to use the Charter without having to grapple with (or, worse, decide) such difficult questions. But at what cost? Maybe none, so long as we don’t look down.

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^[1] 157: “Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect.”

^[2] 159-60: “… an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

^[3] 641: “To answer this question one must, I think, return to the general discussion of Dickson J. in Hunter on the purposes underlying the s. 8 right. One of those purposes, he found, is the protection of the individual’s reasonable expectation of privacy.”

^[4] 641: “Dickson J. considered that the underlying value to be protected by s. 8 of the Charter was the individual’s interest in privacy”

^[5] 293: “Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allows^*for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement…In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.  This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” See also, 291: “The purpose of s. 8 is to protect against intrusion of the state on an individual’s privacy.  The limits on such state action are determined by balancing the right of citizens to have respected a reasonable expectation of privacy as against the state interest in law enforcement.”

^[6] 446: “The importance of a contextual approach in considering constitutional guarantees has been noted in several judgments of this Court…In R. v. Wholesale Travel Group Inc.,  [1991] 3 S.C.R. 154, which, as here, concerned an offence of a regulatory nature, Cory J. said the following at pp. 226‑27: ‘ It is now clear that the Charter is to be interpreted in light of the context in which the claim arises.  Context is relevant both with respect to the delineation of the meaning and the scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society…’”

^[7] ¶¶19-21: “the Court early on established a purposive approach to s. 8 in which privacy became the dominant organizing principle… Within the general principle thus stated, the cases have come to distinguish among a number of privacy interests protected by s. 8.  These include personal privacy, territorial privacy and informational privacy…Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal.”

^[8] ¶8: “Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of s. 8. It may be said that our Charter jurisprudence was born with Hunter v. Southam, which remains one of the seminal judgments that, like R. v. Oakes, [1986] 1 S.C.R. 103,and Re B.C. Motor Vehicle Act,  [1985] 2 S.C.R. 486,laid the groundwork for the interpretation of the Charter (see R. J. Sharpe and K. Roach, Brian Dickson: A Judge’s Journey (2003), at pp. 312-16).  Although the word “privacy” does not appear in the Charter, from the first days of its application, s. 8 evolved into a shield against unjustified state intrusions on personal privacy (Hunter v. Southam, at p. 160).”

^[9] ¶70: “There is always, as Hunter v. Southam established, a realistic balance that must be struck between privacy and the legitimate demands of law enforcement and criminal investigation.”

^[10] ¶56, quoting R. v. Krist (BCCA): “whether the important values which s. 8 protects in relation to privacy within the home reasonably extends to that which has been discarded from the home and put out for collection as garbage. I think not.”

^[11] ¶17: “ This Court’s foundational decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, established that s. 8 of the Charter protects a right to privacy.  Principles delineating the right to privacy laid down in Hunter apply with equal force today. Section 8 of the Charter protects “people, not places” (p. 159).  Like all Charter rights, the s. 8 right to privacy is not absolute — instead, the Charter protects a reasonable expectation of privacy.”

^[12] ¶¶34-37: “Section 8 of the Charterguarantees the right of everyone in Canada to be secure against unreasonable search or seizure.  An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access…Privacy is a matter of reasonable expectations… If the claimant has a reasonable expectation of privacy, s. 8 is engaged, and the court must then determine whether the search or seizure was reasonable…”