Charter Challenge Update – 2024

Court of Appeal Decision is a Setback for Charter Rights and a Green Light for Government Overreach

July 10, 2024, Mississauga – On July 8, 2024, the Court of Appeal of Ontario released its decision affirming the judgment of the Ontario Superior Court of Justice applying the principle of prematurity to MAC’s application for Charter relief, requiring MAC’s Charter challenge to await the completion of the Canada Revenue Agency (CRA) audit and any administrative appeal process.

This ruling is disappointing, as it effectively grants the government impunity to infringe upon the Charter rights of Canadians during administrative proceedings and delays the possibility of challenging these violations through the courts. 

“This ruling is not only a significant setback for Charter rights but also serves as a green light for governmental overreach, particularly detrimental to visible minorities and disadvantaged communities, who suffer disproportionately from systemic discrimination by government agencies,” says Sharaf Sharafeldin, President-Strategy of the Muslim Association of Canada.

“The decision poses a significant issue by failing to provide Canadians with timely remedies for constitutional violations occurring during CRA audits. This delay in judicial intervention allows ongoing constitutional breaches and leaves Canadian charities vulnerable to continued violations until administrative processes conclude. For MAC, this has meant enduring over nine years of protracted and prejudicial scrutiny,” says Geoff Hall, lawyer at McCarthy Tétrault LLP.

Importantly, the court’s decision does not deal on the merits with MAC’s arguments and evidence showing that the CRA’s audit violated the Charter of Rights and Freedoms. Indeed, in the Superior Court, Justice Koehnen explicitly acknowledged that MAC’s challenge likely would have succeeded if not for the prematurity principle.

The ruling is especially alarming in the context of a recent Senate report which concluded that Islamophobia is present in many Canadian institutions and remains an uncomfortable reality for many Canadians. The report further stated that “laws, policies, and practices continue to systemically disadvantage Muslims” and have “profound and lasting effects on Muslim communities.” This institutional discrimination underscores the gravity of the court’s decision to delay judicial intervention.

The application of the prematurity principle imposes extensive legal and administrative costs on charities, leading to financial strain, reduced programming, and compromised charitable work. Ultimately, this could leave charities unable to effectively challenge Charter violations in court by the end of an audit.

In response to this decision, MAC is assessing its legal options and continues to advocate for CRA reform, calling for recognition and rectification of systemic Islamophobia.

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