A Reluctant Justification: R v Michaud Uses Bedford Approach to Justify Section 7 Infringement

In R v Michaud, 2015 ONCA 585 [Michaud], the Court of Appeal for Ontario (“ONCA”) reluctantly followed the precedent set in Canada v Bedford, [2013] 3 SCR 1101 [Bedford]. Justice Lauwers of the ONCA found that a highway speed regulation did infringe section 7 of the Charter, but found it to be justified under section 1. The Supreme Court of Canada (“SCC”) has never found a section 7 infringement justified under section 1, and has indicated that it would be difficult to do so. The Bedford framework may change this long-lasting hesitancy—Michaud marks the first case where a section 7 infringement is found justified under section 1, and provides an interesting example of the deficiencies of the Bedford framework when put into practice.

The Facts

Gene Michaud was a commercial truck driver. By law, his truck needed to have a functional speed limiter set to a maximum speed of 105 km/hour. The speed limiter on Mr. Michaud’s truck was set to 109.4 km/hour, 4.4 km more than the maximum limit. He was charged with contravening the Highway Traffic Act, RSO 1990 c H8 [HTA] and the equipment regulation that together imposed the speed limiter requirement.

The justice of the peace acquitted Mr. Michaud. He found that the legislation violated section 7 of the Charter by infringing Mr. Michaud’s right to security of the person, in that there were occasions where Mr. Michaud would be put in unsafe driving conditions if he were forced to abide by the maximum speed limiter requirement. The trial justice followed the approach outlined in Bedford.

The Bedford test first asks whether the law limits or negatively impacts life, liberty, or security of the person. Security of the person includes the “physical and psychological integrity of the person, including personal autonomy” (Bedford, para 64). The second question is whether the limitation imposed by the law is contrary to the principles of fundamental justice. Bedford outlines three such principles: arbitrariness, overbreadth and gross disproportionality.

Arbitrariness is found when there is no rational connection between the purpose of the law and the impugned effect on the individual, or when it is shown that the impugned effect undermines the objective of the law. Overbreadth is found when a law is “so broad in scope that it includes some conduct that bears no relation to its purpose” (para 70). This overreach is understood to be arbitrary, connecting this principle with arbitrariness. Finally, gross disproportionality means that the law’s effects on a person’s life, liberty or security are so serious that they are “totally out of sync with the objective of the measure” (para 71).

The trial justice concluded that none of the evidence established that speed limiters actually resulted in “increased safety and decreased accident rates” (Michaud, para 16). The maximum of 105 km/hour did not allow drivers to be able to manoeuvre as necessary to avoid collisions, putting the driver and those nearby in danger in some instances. Thus, the legislation deprived Mr. Michaud of his security of the person according to the first part of the Bedford test.

The deprivation was not in accordance with the principles of fundamental justice, according to the trial justice. The maximum speed of 105 km/hour was arbitrary, and “without the benefit of science as to the safety or effectiveness of the limit” (para 20). The trial justice found that according to the Bedford approach, the legislation infringed Mr. Michaud’s security of the person and was not in accordance with the principles of fundamental justice. Thus, the trial justice struck down 68.2 of the HTA.

The Ontario Court of Justice on appeal admitted fresh evidence and set aside the trial decision, stating that the legislation did not violate the Charter. The appeal judge considered a 2012 study by the US Federal Motor Carrier Safety Administration that “established a major empirical link between observed carrier crash rates and speed limiter use” (para 26). Given that the maximum speed limiter requirement actually yielded positive safety benefits, the appeal judge found that the speed limiter did not deprive Mr. Michaud of his security of the person, as required by the first prong of the Bedford test.

The appeal judge also concluded that the legislation was not arbitrary because it was “directly connected to its objectives of reducing truck emissions and improving highway safety” (para 34). The legislated speed of 105 km/hour represented the “maximum legal speed plus a five per cent margin of error” (para 34). The appeal judge thus concluded that the speed limiter requirement was in accordance with the principles of fundamental justice. The proceedings against Mr. Michaud were stayed.

The main question before ONCA was whether section 68.1(1) of the HTA was unconstitutional because it violated the right to security of the person, as protected by section 7 of the Charter. Justice Lauwers of the ONCA reluctantly found that section 68.1(1) did infringe Mr. Michaud’s section 7 rights, but found that it was justified under section 1 of the Charter. Justice Lauwers also had a few choice words on some of the problematic implications for section 7 and section 1 through the precedent set in Bedford.

The ONCA Decision

From the outset, Justice Lauwers’ decision for the ONCA expressed concern about the Bedford framework that he was obliged to use in his reasoning. The Bedford framework sharpens section 7 of the Charter so that it has a “singular focus on the individual rights claimant” (Michaud, para 63). This means that an unacceptable impact on just one person is enough to establish a breach of section 7.

Justice Lauwers did find that the legislation deprived Mr. Michaud of his right to security of the person on a “strict and literal reading of Bedford” (para 73). Acceleration above the legislated limit is needed to avoid collisions in about 2% of traffic conflicts, and this is enough to establish the first branch of the Bedford test. The second branch of the Bedford test is met because the “law contradicts its own purpose of improving highway safety” in some instances, making it overly broad and arbitrary. The 2% of situations are enough; this is not a dismissible consequence of an overall beneficial safety regulation, because for that individual truck driver in Mr. Michaud’s situation, the deprivation of safety is real. Justice Lauwers reached this conclusion “most reluctantly.”

The problem lies with how the Bedford framework will apply to safety regulations, which have as a goal the balancing of risks and benefits—not for an individual, but across a population. According to Bedford, section 7 cannot by itself deal with this balancing, as it is focused on the individual. So, invariably, if an individual is endangered in a given situation due to a particular safety regulation, then that regulation will be found to infringe that individual’s section 7 rights. The balancing of risks and benefits must be done with a section 1 analysis.

Section 1

This is the only case where section 7 has been found to be justified under section 1. According to the SCC in Carter v Canada, [2015] 1 SCR 331 [Carter], it would be difficult to justify an infringement because “the rights protected by s. 7 are fundamental, and ‘not easily overridden by competing social interests’ … And it is hard to justify a law that runs afoul of the principles of fundamental justice and is thus inherently flawed” (Carter, para 95).

Justice Lauwers began this difficult task by emphasizing that he was dealing with safety regulations. Safety regulations will always involve uncertain risk assessment that will implicate the safety of others. They involve drawing certain and knowable bright lines, like speed limits. There are invariably trade-offs with these limits. We could make the speed limits 20 km/hour, which would almost certainly limit mortality on the roads—but this would be impractical, unpopular, and uneconomical. As can be seen in the division between the expert witnesses involved in this case, there may not be a clear answer as to whether a particular bright line rule achieves the right balance.

With this in mind, Justice Lauwers turned to the section 1 analysis. The legislation’s goal of improving highway safety fulfilled the pressing and substantial objective. The experts and studies relied upon in the trial decision do support the conclusion that speed limiters improve highway road safety in most circumstances. Thus, the speed limiter regulation is connected to the goals of improving highway safety, and the rational connection between the legislation’s limit and its purpose is met.

The next question is whether there are less harmful ways of achieving these goals—the minimal impairment portion of a section 1 analysis. Mr. Michaud argued that the legislature should have found an alternative way of achieving highway safety without removing the ability of truck drivers to accelerate. These alternatives might have included traffic police officers or radar guns.

Justice Lauwers did not accept this argument. He made particular note of a common refrain in prior jurisprudence that courts should act with deference to complex regulatory responses (see e.g. Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567; Carter). The hybrid form chosen by the legislature achieved its objective. The limit of 105 km/hour is arbitrary only in the sense that any number set in a safety standard is arbitrary—a number must be chosen, and as new research comes out, the number may be refined by the legislature as it sees fit. This is not “arbitrariness in the constitutional sense” (Michaud, para 134). A speed limit of 105 km/hour is within a reasonable range of options for the legislature to pick. Thus the legislation is minimally impairing.

Lastly, Justice Lauwers asked whether the limit on the right is proportionate to the public benefit conferred by the limit. Using the numbers that the appellant himself used to show the infringement, Justice Lauwers argued that at its very highest, only 2% of traffic conflicts would require accelerating to safely avoid a collision. Other evidence that came out in the appeal stage showed that mandatory speed reduction for trucks did indeed save lives in many situations, limiting both the severity and frequency of accidents. Thus, the beneficial effects of the legislation outweigh any deleterious effects. Justice Lauwers thus upheld the legislation under section 1 of the Charter, concluding that it is “demonstrably justified in a free and democratic society.”

Some Thoughts On Bedford

Justice Lauwers ended his analysis with eight paragraphs critiquing the Bedford framework. He found it incongruous that safety regulations could interfere with the individual’s right to security of the person, particularly given that these are not criminal laws. Bedford has now made it possible to successfully challenge numerous safety regulations. In particular, this is because of Bedford’s singular focus on the individual, and its softening of the language of “deprivation” to the lower threshold of legislation that “limits” or “negatively impacts.” Safety regulations will now often butt heads with section 7, as regulators need to pick bright line rules that will often be over-inclusive in order to err on the side of safety. However, these regulations are not really engaging true deprivation of life, liberty, and security of the person in the constitutional sense.

Justice Lauwers suggested that a way out of this pickle might be to recognize safety regulations as distinct categories, where claimants would be required to establish overbreadth or gross disproportionality not on an individual basis but on a more general basis. Any other outlier situations where safety regulations were actually used in an arbitrary or overbroad sense could be challenged through the principles of administrative law.

Justice Lauwers was not alone with his concerns on Bedford. University of Toronto law professor Hamish Stewart—who just published an entire book on section 7—released an article this year arguing that “Bedford has fundamentally altered the structural relationship between section 7 and section 1 of the Charter,” opening up the “troubling possibility that violations of section 7 may be easier to justify than they have ever been” (“Bedford and the Structure of Section 7” (2015) 60:3 McGill LJ, 584).

R v Michaud is the first case to justify a section 7 infringement, allowing Stewart’s premonition to ring true. Safety regulations, and other regulations that have to draw bright lines (Stewart gives the example of the age of consent to sexual conduct) may find themselves open to easily proven infringements of section 7. It will be interesting to see if the SCC revises its approach to section 7 in light of the deficiencies of the Bedford approach.