CONSTITUTIONAL-LAW-FINAL-EXAM-CHECKLIST

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CONSTITUTIONAL LAW FINAL EXAM: CHECKLIST
(positive rights permit or oblige action, whereas negative rights permit or oblige inaction)
Introduction:
The fact pattern at hand appears to contain constitutionality issues pertaining to sections
_______________ of the Charter. The purpose of the following analysis is to determine
whether or not these sections are violated by __________ and, further, whether or not this
infringement can be justified under s. 1 of the Charter.
At the outset of this analysis, it should be noted that this answer will use the purposive
approach to Charter interpretation as established by the Court in Hunter v. Southam (see
also R v Big M Drug Mart; R v Therens). That said, the Court in Hunter v Southam
specified that Charter rights ought be interpreted in a purposive manner. This approach
makes sense because, for example, if we are going to figure out what freedom of
_________ actually demands—and therefore what the scope of this right ought to be—
then we would need to determine exactly what the object or purpose of that right is to
begin with.
STEP 1: APPLICATION OF THE CHARTER: Does the Charter apply?
(If clearly gov’t action such as a statute or law; then write a one linter and don’t bother going into
crazy detail…)
(If there is any doubt about Charter application then apply: McKinney (gov’t actor?); Eldridge
(private actor implementing gov’t policy or program); Vriend (inaction of gov’t in a way
permitting a private individual to infringe one’s charter rights; charter applies to acts of legislature
that are under inclusive and omit certain grounds); Dolphin Delivery (charter does not apply to
common law between private parties or court order at common law between private parties;
charter does not apply directly to common law unless it is being relied upon by a state actor); Hill
v Church of Scientology (no direct charter challenge to common law between private parties but
arguments can be made for reinterpretation or small adjustments of common law to better reflect
charter values)).
The first question to be asked is whether or not the Charter, pursuant to s. 32, actually
applies to the facts of the scenario at hand. The courts ruling in RWDSU v Dolphin
Delivery states that the Charter, pursuant to s. 32, applies to the legislative, executive,
and administrative branches of government but not to private parties. In other words, the
courts have expanded to hold that the Charter applies only to government actors (see
McKinney) or governmental actions or decisions (such as the implementation of a
government program or policy) that may be engaged in by a private actor (though it
should be noted that only that entity’s actions / decisions pursuant to the implementation
of a governmental program or policy will be subject to Charter review, per Eldridge). So
how do we draw the line between governmental and non-governmental actors so as to
decide when the Charter applies? And when can private actors be said to be undertaking
in government action such that those actions are subject to Charter review?
In McKinney v University of Guelph, the court states that the determination as to whether
an entity is a government actor or not boils down to asking the following questions: Is the
entity a substantially autonomous in its self-governance? Is the entity self-governing and
autonomous from the government such that ? If the answer to these questions is yes, then
the Charter doesn’t apply (and vice versa). Moreover, Justice Wilson, in dissent, outlined
three tests which can be ran to determine whether or not an entity is substantially
autonomous in its self-governance so as to render it immune from Charter scrutiny: i) the
control test, ii) the government function test, iii) the statutory authority and public interest
test. The fact in this scenario fall under the _____________ test which asks
_______________ (define the test from below and provide an answer to gov’t actor or
not; if gov’t actor end analysis and say there is no reason to consider Eldridge; if
necessary then move on to Eldridge below).
But even if an entity is not a government actor, the court in Eldridge v British Columbia
(AG) held that a private entity who takes part in an activity that can be described as
‘governmental’—such as implementing a government policy or program—will also be
subject to Charter review (though, only their specific ‘governmental’ actions / decisions
will be subject to Charter scrutiny). To determine what a ‘governmental function’ is, the
court says to look at the following two factors: i) The character of the function: Is it a
government-like public function / decision (such as, for example, the allocation of scarce
resources)?, and ii) Degree of control or oversight from the government: Is there a
significant amount of oversight from the executive? Richard Moon adds that we should
ask: Whether or not only a specific or restricted number of entities have been given this
power? (APPLY) In the scenario at hand it is clear that although _________________ is
a private actor, in reality _________ should be subject to Charter because it is
_______________ (implementing a gov’t program or policy?; conclude the Charter
applies).
McKinney Test:
1) The control test: whether a branch of government exercises general control over the entity.
2) The government function test: does the entity perform a traditional government function or a
function that is recognized as government responsibility.
3) The statutory authority and public interest test: is the entity one that acts pursuant to
statutory authority specifically granted to it to enable it to further an objective that gov’t seeks to
promote in the broader public interest (see Eldridge).
Other application issues:
i)
If the issue involves governmental inaction which allowed a private party to
infringe upon one’s Charter rights, then apply Vriend v Alberta: Where a challenge
concerns an Act of the legislature that is under inclusive as a result of an omission, s.
32 should not be interpreted as precluding the application of the Charter.
ii)
If the issue involved the application of the Charter to common law between private
parties apply Dolphin Delivery: The Charter does not apply directly to private actors.
When a government actor is relying on common law then the Charter will be
applicable. Where, however, private party “A” sues private party “B” relying on the
common law and where no act of gov’t is relied upon to support the action, the
Charter will not apply. Then, if you want to re-interpret the common law in light of
Charter values apply Hill v Church of Scientology: When parties are involved in
private litigation and common law rules are applied, a direct Charter challenge
cannot be undertaken but the party who is being affected by the common law rule can
try to discharge the burden of proving that the court ought to reinterpret the rule in
light of Charter values (see the test above).
STEP 1: FREEDOM OF EXPRESSION ISSUE
On the facts of this case, it appears that one major issue regards freedom of expression as
protected under s. 2(b) of the Charter. Section 2(b) of the Charter states that: everyone
has within Canada has the fundamental freedoms of though, belief, opinion and
expression including freedom of the press and other media of communication. Clearly, s.
2(b) is very broad and protects a whole slew of rights—and it is generally assumed that
this is done in order to emphasize that there are many ways that entitles may express
themselves—but for practical purposes this right is generally referred to as “freedom of
expression.”
So what is expression? What is the activity being protected under s. 2(b)? What
characterizes an act of expression such that that act is deserving of constitutional
protection under s. 2(b)? Well, in order to figure out whether or not a breach of s. 2(b) has
occurred, the following questions must be asked, generally: Is the individual in question
undertaking an activity that has the intention of conveying meaning / a message to
another or others? And is that individual undertaking the activity intending that those
others recognize that they see the signal that he / she is intending to communicate
something to them? (Margarine Reference). Clearly, ‘expression’ is a very difficult
concept to narrowly define. And in light of this, the courts have traditionally been very
vague at the s. 2(b) stage (where it is determined whether or not an activity is protected as
‘expression’); instead choosing to do much of the heavy lifting in the s. 1 analysis.
In Irwin Toy v Quebec, the Court laid out the basic approach to be followed whenever a
freedom of expression claim is made under the Charter. The first step in the Irwin Toy
Test— which requires that a claimant must satisfy the Court on a balance of probabilities
that they met its requirements—asks: Is the activity in question within the sphere of
conduct protected by freedom of expression? Here, the court specific that ‘expression’
has to be considered both as ‘content’ and ‘form’. The court held that any activity (i.e.,
form) is expressive if it attempts to convey meaning (i.e., content). Thus, if the activity in
questions attempts to convey meaning, it prima facie falls within the scope of the
protection of s. 2(b). In other words, an activity (i.e., form of expression) cannot be
excluded from s. 2(b) protection on the basis of content or meaning. The court goes on to
emphasize that as long as the activity was undertaken with the intention to convey
meaning this in almost all cases enough to trigger s. 2(b) protection. Thus, since any act
can be an act of expression if it is formed with the right intention (subject to only a few
exceptions), then this means that potentially any law can infringe expression (i.e., this is a
broad protection).
Under this first step, it also must be considered that there are a few exceptions to the
broad protection of s. 2(b). More specifically, the courts have some expression can be
excluded from s. 2(b) because of how or where it is delivered. In other words, all
expressive content (see above) is worthy of protection, but not all methods or locations
necessarily will be. Firstly, any method of violence or threats of violence will not receive
s. 2(b) protection (Irwin Toy). So it must be asked: Does the expression in question have a
violent form? (scope of violence see other notes) If yes, then this expression is not
protected by s. 2(b). But even further, the court in Montréal (City) v 2952-1366 Québec
Inc dealt with the notion that some expression on state owned properties are not subject
to s. 2(b) protection. The court there stated that section 2(b) is not implicated by the mere
fact of government ownership over a property in question; in other words, there are some
properties where the government doesn’t need to justify their restriction of s. 2(b) due to
the nature of those properties. **If necessary based on fact patters go into test: below**
In sum, if the activity in question passes these steps, it moves on to the next stage of the
Irwin Toy test.
(IF NEEDED BASED ON FACTS: Montreal By-Law!Property Summary)
In Montreal, the court stated that there are some properties (such as parks and street
corners) that have been historically open to the public for the purpose of communication
such that the individuals who are at these properties have a presumptive right to
communicate there (such that the state would need to justify a restriction under s. 1 due to
the historical precedent of those properties being open to the exercise of s. 2(b)) However
the court said that there are also some property locations that don’t have the same
historical importance or precedent of being important for the common exercise of s. 2(b)
and so on these property locations the state doesn’t have to justify any exclusion of
individuals from exercising s. 2(b) (i.e., private government offices). (Montreal By-Law
Case). So the court draws a line between: i) public forums (traditionally open to
communication) and ii) non-traditionally public forums. Those not traditionally open to
communication. The test for making this distinction requires the court to ask the
following: First, does the expression in that place / location conflict with the purposes
which s. 2(b) intends to serve? Namely, does expression in that particular place / location
conflict with, i) Democratic discourse, ii) truth finding, and iii) self-fulfillment? Some
factors to take into consideration when answering this are: a) the historical or actual
function of the place and, b) whether other aspects of the place suggest that expression
within it would undermine the values underlying freedom of expression. Next the court
must ask: Does the by-law or restriction in question infringe on protected expression in
purpose? Does it infringe on protected expression in effect? And finally, if all of this is
proven by the claimant then the government must justify the restriction in question under
s. 1 of the Charter. (IF NEEDED BASED ON FACTS)
The next stage of the test asks to court to consider the nature of the restriction by asking:
Was the purpose or the effect of the government action the restriction of freedom of
expression? Here, if the government’s purpose is to restrict attempts to convey a
meaning, either by directly restricting the content of expression (i.e., singling out
particular meanings that are not to be conveyed) or by restricting a form of expression
tied to content, there is a violation of s. 2(b) and a s.1 analysis is required to determine
whether the law restrictions is justified. However if the government has aimed only to
control the physical consequences of particular conduct (time, place or manner), the
government action will be found to violate s. 2(b) in it’s the effect of its restriction only if
it is shown that the restricted expression advances the values of truth, democracy and
self-realization and is restricted from doing so. In sum, in this situation the onus is on the
claimant to prove that her aim was to convey a meaning reflective of the principles
underlying freedom of expression and the gov’t indirectly restricted her expression (i.e.,
her ability to do so). For example, the government may issue a law that prohibits the
handing out of flyers for the purpose of keeping the streets clean, and a claimant may
bring a s. 2(a) freedom of expression claim if they can establish their speech meets
connects to the underlying values of truth, democracy, or self-realization and the
governments law is in effects restricting that speech.
If this stage of the Irwin Toy test is satisfied, then the government must prove that their
restriction of s. 2(b) is justified under s. 1. It must be kept in mind that, owing to the
contextual approach as established in Dagenais v Canadian Broadcasting Corp, not all
forms of expression will hold equal weight and value within any court’s section 1
analysis. In other words, it is clear that some forms of expression have more weight than
others. For example, commercial speech is worth more than artistic speech. And artistic
speech has less value because it has a less powerful connection to the values of truth,
democracy, and self-realization.
Applying this test to the case at bar____________________________________
(see notes for quick summary of test and analogous reasoning)
NO INFRINGEMENT: Still say you will be moving on to do the s. 1 analysis.
INFRINGEMENT: Explain how you are now moving on to a s. 1 analysis.
Other issues that may be applicable for analysis:
Picketing Issues:
Dolphin Delivery—Any form of picketing counts as at least some form of expression:
The picketers would be conveying a message which at a very minimum would be
classified as persuasion, aimed at deterring customers and prospective customers from
doing business with the respondent. But, because this picketing was supposed to be
peaceful and did not involve violence, threats of violence, the destruction of property,
assaults or other clearly unlawful conduct, it involved the exercise of freedom of
expression.
RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd 2002 SCC—Here the
court reverses DD decision – doesn’t ban secondary picketing per se, only does if there is
a tortious activity that is also involved. ****THE SCC has said now that former common
law rule against secondary picketing no longer applies so that secondary picketing in
general should no longer be unlawful under common law. Only when additional factors
are present which show significant interference or constraint on the individual’s ability to
make a free choice to pass the picket line will this make secondary picketing
unlawful*****! it undoes one of the assumption of the circumstances in which s. 2(b) is
protecting expression.
Commercial Expression:
Ford v Quebec (AG) 1988 SCC—Commercial expression (i.e. advertising) falls within
the scope of 2(b) – commercial expression plays a significant role in enabling individuals
to make informed economic choices, which is an important aspect of personal autonomy
Irwin Toy—
Hate Speech:
R v Keegstra [1990] 3 SCR 697 (page 1018)—good s. 1 analysis of hate speech criminal
code provision; Dixon v McLachlin debate on problems with hate speech regulation.
Taylor v Canadian Human Rights Commission [1990] 3 SCR 892—3—The purpose of
human rights legislation is to compensate and protect the victim rather than to punish the
accused (i.e., they are educational and the remedy is an injunction). And this is why the
lack of intent needing to be proved is so critical here; the cost is not that high in the end
for the accused.
Saskatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467—The Court
tweaks the definition for hate speech in Taylor to: “whether a reasonable person, aware of
the context and circumstances surrounding the expression, would view it as exposing the
protected group to hatred.
Defamation Law
Hill v Church of Scientology of Toronto [1995] 2 SCR 1130: Private parties do not owe
each other a constitutional duty and cannot found their cause of action on a Charter right;
the Charter does not apply to the common law where it is invoked in reference to a purely
private dispute (BUT, Charter values can be considered if alleged inconsistency with the
common law). Reputation is intimately related to the right to privacy that has been
accorded constitutional protection; thus, there is a need to balance both.
Grant v Torstar [2009] SCC 61: The law of defamation should give way to the rights of a
party to speak on matters of public interest…Provided the party exercises a certain level
of responsibility in verifying the potentially defamatory facts. Defence of responsible
journalism added. So the SCC thinking about free speech under s. 2(b) and one’s
reputation thought that another defence should be available: The defence of responsible
communication on matters of public interest. An example of where the court is
reinterpreting common law rules so that they are better in line with charter values.
Election Spending:
Harper v Canada (Attorney General) [2004] 1 SCR 827 (pg. 1079)—
In some situations—particularly in the context of trying to find a connection between
freedom of expression and a harm wherein there is no definitive social science evidence
for either side—the Courts may rely on some of that social science evidence, along with
reason and logic in holding that there is a connection between the speech in question and
a given harm.
The Court may also—when the nature of the harm they are trying to prove is intrinsically
difficult to prove or link with certainty to a particular kind of speech—rely on the
judgment of the legislature (and the contextual approach talked about).
Access to Property
Montréal (City) v 2952-1366 Québec Inc. [2005] 2 SCR 141 !Attempt to articulate a
single test for communicative access to public property.
ISSUE: FREEDOM OF RELIGION
On the facts of this case, it appears that one (additional) major issue regards freedom of
religion as protected under s. 2(a) of the Charter. Section 2(a) of the Charter states that:
everyone in Canada has a right to the fundamental freedoms of conscience and religion.
So how are we to understand freedom of conscience and religion? Should s. 2(a) be
understood as grounded in individual liberty? Or should it be understood more as an
equality right? Well, to start, it should be noted that very little case law exists on the
‘freedom of conscience’ element of this right (albeit, one notable exception being that of
Maurice v Canada (AG) (2002)). That said, it is my interpretation that the Courts have
made up for this lack of ‘conscience-focused’ adjudication by spitting the s. 2(a) right
into two separate religious freedoms—one of which, as we will see, accounts for this
conscience element.
As first established in R v Big M Drug Mart, freedom of religion involves both freedom
from religion (i.e., that the state cannot compel individuals to engage in religious
practices) and freedom to practice one’s religion (i.e., the state cannot restrict one’s
religious practices). It should be noted that these two religious freedoms—while similar
on the surface—are different in their natures and thus require different tests in order to
prove each of them respectively infringed upon. To summarize, actions undertaken by the
state will breach s. 2(a) of the Charter when: i) The state compels individuals to engage
in a religious practice or to hold certain beliefs (i.e., in this case the purpose of the law in
question will be religious in nature (see Zylberberg); or, more currently, it will be a law
that is non-neutral on religious matters and thus will be found to breach this formulation
of s. 2(a) (see Saguenay; and also see Chamberlain), or ii) The state restricts one’s
religious practice and doesn’t allow an individual to practice their religious beliefs or
hold any religious belief they would like to (i.e., in this case the law will be secular in its
purpose, but have the effect of imposing non-trivial restriction on one’s religious practice
(see Edwards Books; and also see Amselem).
In summary, it is clear from these two distinct formulations of the s. 2(a) right that both a
law’s purpose and its effect will be relevant to the determination as to whether or not s.
2(a) has been infringed by it (Big M Drug Mart). On the one hand, if a law is found to
have a non-neutral religious purpose underlying it, then it will automatically be unable to
pass s. 1 justification owing to the fact that the law in question fails to have a 'pressing
and substantial purpose’ and thus there is no reason to look into the law’s effects under
the proportionality analysis. While, on the other hand, even if a law has a secular purpose,
it is still open to a litigant to argue that in its effects it still restricts the ability of one to
practice their religion in a non-trivial way (see Amselem). In the fact pattern at hand, it is
clear that____________ infringes upon ____________ s. 2(a) rights in the
_________________________ (first way? Second way?) And thus, it is necessary to look
more closely at what the courts have said about ______________ (the freedom from
religion? The freedom to practice one’s religion?)
(PICK ONE OF TWO BELOW)
i) Freedom from religion issue (these are less likely…so look again…is the law
really religious in purpose or non-neutral in purpose…Lord’s Prayer? Prayer being
forced? Opening town-council with prayer? Or is it secular in purpose?)
As aforementioned, in Big M Drug Mart, the court clarified that one formulation of s.
2(a) is the right for individuals to be free from the state compelling them to engage in a
religious practice or to hold religious beliefs. In other words, when a law has as its
purpose the compulsion of one religious belief over another or religious belief over nonbelief (and vice-versa) this will automatically render the law an infringement on s. 2(a).
This is because laws that have as their purpose the compulsion of one religious practice
over another, or the compulsion of religious practice over non-religious practice (and
vice-versa), are directly at odds with our commitments to s. 2(a) of the Charter and
cannot be held to pressing and substantial purposes. In other words, since laws with nonreligiously-neutral purposes automatically fail the pressing and substantial purpose test of
s. 1 adjudication there is thus no need to consider further the effects of these laws (since
they’re already invalid on their face).
It should be noted that the court in Saguenay made clear that the state has a duty to
remain neutral in matters concerning religion. And state neutrality means that the state
must neither encourage nor discourage any form of religious conviction whatsoever
(Saguenay). By expressing no preference between religions or between belief and nonbelief in general, the state ensures that it preserves a neutral public space that is free of
discrimination and in which true freedom to believe or not to believe is enjoyed by
everyone equally, given that everyone is valued equally (in line with s. 27 of the Charter)
(see R Moon: Freedom of Religion Under the Charter of Rights: The Limits of State
Neutrality (2012)). And finally, it should be noted that—when looking at a case
concerning the state compelling individuals to follow the religious practices of the
majority—the contextual approach requires the court to look from the point of view of
the minority in question in order to determine whether or not pressure or compulsion has
occurred from the law’s purpose (Zylberberg).
In the fact pattern at hand, it is clear that________________ (non-neutral purpose?)
Other issues that may be applicable for analysis:
Sunday Closing:
R v Big M Drug Mart Ltd., [1985] 1 SCR 295:
Actions undertaken by the state will breach s. 2(a) of the Charter when:
1) The state compels individuals to engage in a religious practice or to hold certain beliefs (i.e.,
the purpose of the law is religious…or non-neutral…Saguenay!move from the view of
individual liberty underpinning s. 2(a) to the idea of equality underpinning it).
2) The state restricts religious practice and doesn’t allow individuals to practice their religious
beliefs or hold any beliefs they would like to (secular law; but has the effect of religious
restriction; must be justified under s. 1 for public purpose).
Both the purpose and effects of a piece of legislation (i.e., a law) are relevant to determining its
constitutionality. Even if a law has a valid purpose, it is still open to a litigant to argue that it interferes
by its effects with a right or freedom guaranteed by the Charter.
If a law’s purpose is to compel a religious practice then this is directly at odds with our commitments
under s. 2(a) of the Charter and cannot be a pressing and substantial purpose. And if a law fails the
pressing and substantial purpose test, there is no need to consider further its effects, since it has
already been demonstrated to be invalid.
Lord’s Prayer:
Zylberberg v Sudbury Board of Education (Director) [1988] ONCA:
Pressure or compulsion to follow religious practices of the majority must be assessed from the POV of
the minority in question (i.e., The contextual analysis: in this situation the kids weren’t really free
from pressure to opt out).
When the state compels individuals to follow a religious practice in violation of s. 2(a) the Court will
usually find either a non-pressing and non-substantial religious purpose OR a failure of the minimal
impairment test (just to hammer the point home).
Freitag v Penetanguishine (Town) [1999] ONCA
Pushing towards state neutrality—mayor of town—Lord’s prayer…
Mouvement laïque québécois v. Saguenay (City) [2015] 2 SCR 3!“atheist Simoneau”
Here the SCC finally embraces the idea that freedom of religion and conscience requires the state to
adhere to a duty of neutrality. By expressing no preference between religions or between belief and
non-belief in general, the state ensures that it preserves a neutral public space that is free of
discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally,
given that everyone is valued equally.
****The state thus has a duty to remain neutral in matters concerning religion. State neutrality means
that the state must neither encourage nor discourage any form of religious conviction whatsoever****
**If the state adheres to a form of religious expression under the guise of cultural or historical reality
or heritage, it breaches its duty of neutrality. If that religious expression also creates a distinction,
exclusion or preference that has the effect of nullifying or impairing the right to full and equal
recognition and exercise of freedom of conscience and religion, there is discrimination**
Books With LGBT Content:
Chamberlain v Surrey School District No. 36 [2002] 4 SCR 710 ! “secularism”
Individuals who are required to operate in a secular manner can rely upon religious views / values as
long as those views / values do not involve or necessitate the rejection or repudiation of other ways of
life or religions (i.e., this ensures that each group is given as much recognition as it can consistently
demand while giving the same recognition to others).
Fund all or fund none…that is how Moon describes neutrality of the state in Canada today (not as
extreme as the anti-establishment laws in the USA).
ii) Freedom to practice one’s religion without state interference
(much more likely, the law will be neutral and secular on its face…yet, in its effect it will
impose a burden on the practice of the religion…this has a very BROAD subjective test
(Anselem) and thus has the capacity to interfere with almost any law (Hutterites) and as
such we will show deference to the legislature and take a relaxed approach to s. 1
analysis (Hutterites) PLUS you need to show objective proof of restriction if it isn’t
obvious (Comission Scolaire) and the right is not absolute (Children’s Aid Society of
Metro Toronto)….PLUS there are SOME COSTS that we as society think people should
bare as reasonable to practice their religion (Hutterites….the point on ‘meaningful
choice’).
As aforementioned, in Amselem (expanding on Edward’s Books), the court clarified that
one formulation of s. 2(a) is the right for individuals to be free to undertake any religious
practices and hold any religious beliefs that they would like without state restriction or
interference. In these circumstances, the law will be secular in its purpose, but have still
have the effect of imposing a non-trivial restriction on one’s ability to practice their
religion (see Edward’s Books; and also Amselem). So how are we to know when a law
that is neutral on its face has the effect of infringing upon an individual’s s. 2(a) right
under this formulation? What is the scope of the s. 2(a) right to be free to practice one’s
religion without state interference? And what counts as religious practice?
The court in Amselem outlined the current test. More specifically, it stated that: An
activity will be protected as a religious practice under s. 2(a) if the individual in question
has a sincere belief in the practice’s spiritual significance (Amselem). It should be noted
that it is not necessary for an claimant to show that this belief is shared by anybody else,
nor that it is part of an established belief system; and this is because the courts do not
want, or think it is appropriate, nor that they would be able, to decide what constitutes the
“correct” form of a religious belief or practice in accordance with an established belief
system. In addition, this individual also does not need to show that they understand the
practice in question as mandatory or compulsory as long as they sincerely believe in the
spiritual significance of the act. And finally, although the court can inquire into the
sincerity (i.e., honesty) of a claimant’s belief that a practice in question is spiritually
significant, it should be noted that any inquiry into such sincerity must only focus on the
claimant’s belief at the time of the alleged interference with his or her religious freedom;
and this is because focusing on the past practices of an claimant is inappropriate given the
fact that people (and their beliefs) change over time (Amselem).
Next—once a claimant has satisfied the above steps in order to trigger the
protection of s. 2(a)—he or she (or it, depending on the context; see CJC McLachlin’s
dissent in Loyola) must prove that the restriction interferes with his or her or its ability to
act in accordance with his or her or its religious beliefs in a manner that is non-trivial or
substantial (Edwards Book’s; Loyola). In other words, if it is not blatantly obvious that a
state’s secular law imposes a non-trivial burden upon one’s ability to practice their
religion, then an individual must objectively prove the infringement of his or her or its
right to have occurred on a balance of probabilities (SL v Commission Scolaire Des
Chenes). In sum, it should also be kept in mind that this s. 2(a) right is not absolute (B(R)
v Children’s Aid Society of Metro Toronto), and thus each claim must be interpreted in the
context of competing rights of private individuals (Amselem). And finally, the courts have
acknowledged that given the broadness of this trigger to s. 2(a) protection, it is possible
that almost any law could infringe upon one’s s. 2(a) right, and thus, a measure of
leeway / deference must be accorded to legislatures when the courts go about determining
whether limits on individual rights brought about by public programs are justified under
s. 1 (i.e., there is a relaxed s. 1 analysis) (Hutterian).
Now that this is understood, it is clear on the facts of the current scenario that
________
(talk about how the law is neutral and walk through the test…see SL Commision
reasoning section for a solid summary of the entire test in one coherent summary…and
keep in mind that there are SOME COSTS that we as society think people should bare as
reasonable to practice their religion (Hutterites….the point on ‘meaningful choice’).
(NEXT, GO INTO YOUR SECTION 1 ANALYSIS: may want to rely on Hutterites).
Other issues that may be applicable for analysis:
Sunday Closing Issue:
Edwards Books and Art Ltd. v The Queen [1986] 2 SCR 173
“secular law to close retail stores on Sunday; effect infringing freedom of religion; imposing an
indirect non-trivial burden / cost on practicing one’s religious beliefs”
Both purposes and effects of legislation are relevant to determining its constitutionality. Even if a law
has a valid secular purpose, it is still open to a litigant to argue that it interferes by its effects with s.
2(a).
Legislation with a secular purpose does not infringe the freedom from being able abstain from
religious dogma (i) merely because the secular statutory provisions coincide with the tenants of a
religion (i.e., just because the Criminal Code says not to kill or steal doesn’t necessarily mean the state
is compelling one to conform to Christian religious practices).
When a state coerces a person to forego their practice of a religious belief—whether the coercive
burden / cost by the state is direct or indirect, intentional or unintentional, or foreseeable or
unforeseeable in nature—s. 2(a) of the Charter is infringed as long as the coercive burden / cost is
non-trivial or substantial in nature (i.e., a sales tax on buying a bible is trivial).
Only state imposed coercive burdens count as the state is normally under no duty under s. 2(a) to take
affirmative action to eliminate the natural costs of religious practice.
Minimal impairment within s. 2(a) deserves a standard of reasonableness in its evaluation: “Were
there other ‘reasonable’ alternative schemes or laws that could have fulfilled the same governmental
purpose to the same effectiveness while being less burdensome on the protected freedom?”
****All non-trivial coercive burdens / costs on the exercise of religious beliefs—whether intentional
or not, or direct or not, or foreseeable or not—infringe on s. 2(a)****
Outdoor Decorations / Condominium Common Areas / Neighbours Issues:
Syndicat Northcrest v Amselem [2004] 2 SCR 551 ! “sukkahs”
SUBJECTIVE APPROACH To the Scope of Freedom of Religion Protection established:
TRIGGERING S. 2(a) PROTECTION:
Something will be protected as a religious practice under s. 2(a) if the individual has a sincere belief in
the practice’s spiritual significance:
i) It is not necessary to show that this belief is shared by anybody else or that it is part of an
established belief system—the courts do not want, or think it is appropriate, nor that they would be
able to decide what constitutes the “correct” form of religious belief or practice in accordance with an
established belief system.
ii) Nor does this individual need to show that they understand the practice in question as mandatory or
compulsory—so long as it is significant spiritually that is good enough.
Although the Court can inquire into the SINCERITY (i.e., honesty) of the belief that one’s religious
practice is spiritually significant…Any inquiry into sincerity can only focus on a person’s belief at the
time of the alleged interference with his or her religious freedom because focusing on the past
practices of an individual is inappropriate given that people (and their beliefs) change over time.
Once the above has been satisfied to trigger the protection of s. 2(a), the claimant must show that the
restriction interferes with his or her ability to act in accordance with his or her religious beliefs in a
manner that non-trivial or substantial (Edwards Books). (Keeping in mind that freedom of religion is
not an absolute right and thus each claim must be interpreted in the context of the competing rights of
private individuals).
Driver’s Licenses / Any Regulatory Scheme That Cannot Allow an Exception Issues:
Alberta v Hutterian Brethren of Wilson Colony [2009] SCC 37! “Photo ID Bank”
Since Anselem defined s. 2(a) scope so broadly that it is inevitable that nearly every law will infringe
upon someone’s s. 2(a) right, the Courts must show a measure of deference to legislatures (who make
these complex decisions) while they go about determining whether limits on individual rights brought
about by public programs are justified under s. 1.
When assessing the constitutionality of a law broadly (from a societal point of view), the issue should
be entirely whether the justification of the restriction satisfied the standard Oakes test. Using a
‘reasonable accommodation’ analysis would not be appropriate in these instances because that flexible
approach (focusing on fitting individual’s practices within a scheme) applies only where we are
dealing with an administrative decision implementing a statutory framework (i.e., HRC litigation
dealing with individual cases).
In determining the seriousness of a limit on a claimant’s Charter rights: A limit / restriction on a right
that exacts a cost / burden but nevertheless leaves the religious individual with a meaningful choice
regarding their religious practice at issue will be less serious than a limit that effectively deprives the
individual of such choice (either directly such as in Big M or indirectly such as in Edwards Books
where the cost was so high that it was effectively left the claimants with no meaningful choice) (See
deleterious effects section).
Many religious practices entail costs which society reasonably expect the observant of that religion to
bear (such as loss of privileges)****
School Weapons Issues / School Board Not wanting to make an exception:
Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256
Moon’s point: Hutterian (above) seemed to establish that creating any exception would run the risk of
making a law less effective in establishing its purpose because either: i) A larger amount of individuals
than anticipated could come forth to take advantage of the exception under s. 2(a) or ii) Because when
you think about, any exception does seem to take away (at least in a minor way) from the
effectiveness of a valid law. That said, Moon thinks the court in Multani is staying consistent with this
mode of thinking through not necessarily creating an exception; they simply reason that the kirpan
doesn’t constitute a weapon.
Wearing Religious Paraphilia In the Courtroom Issues / Balancing s. 2(a) against
the right to a fair trial:
R v NS, [2012] 3 SCR 726
Where a witness wears a niqab because of a sincerely held religious belief, a judge should order it
removed if the wearing of the niqab poses a serious risk to trial fairness, there is no way to
accommodate both rights, and the salutary effects of requiring the witness to remove the niqab
outweigh the deleterious effects of doing so.
Moon: The signal here is that fair trial seems to take precedence (if it is an issue) over freedom of
religion. To the extent that credibility of the witness and the importance of her evidence is high, the
balance will generally weigh in favour of infringing on s. 2(a).
FAMILLY ISSUES: a) Parent’s Refusing Treatment for child under s. 2(a):
B(R) v Children’s Aid Society of Metropolitan Toronto [1950] SCC
The scope of s. 2(a) is broad enough and does in fact protect the rights of parents to make choices
regarding their child’s religious beliefs (i.e., parents’ religious beliefs and religiously implemented
decisions regarding the spiritual welfare and the general manner of the raising of their children are
protected under s. 2(a)). However, if the spiritual practice is harmful to the child physically, to the
degree that they may not be able to exercise their own s. 2(a) right later, then the state will be justified
in intervening under s. 1.
b) ERC Course: Parent’s wanting their children exempted from religiously neutral
courses:
SL v Commission Scolaire Des Chenes [2012] 1 SCR 235
Having a course which surveys and fosters an understanding of the various religions in society
(without pushing their views upon students) is not an infringement of parents’ s. 2(a) rights to pass
their religion upon their own children because early exposure of children to realities that differ from
those in the immediate family environment is a fact of life in Canada’s multi-cultural society.
In establishing that a law has breached s. 2(a), the claimant must:
i) Have a sincere belief that a religious practice must be observed (and remember that the court is
limited only to assessing the sincerity of that belief per Anselem).
ii)
Objectively prove the infringement of his right to have occurred on a balance of probabilities (i.e.,
proving the infringement requires an objective analysis of the rules, events or acts that interfere with
the exercise of the freedom).
Religious Institution / Community Claims Issues:
a) ERC Course: Administrative Decision That Private Catholic School Cannot Use
Substitute Course
Loyola High School v Quebec (Attorney General) [2015] 1 SCR 613
Dissent suggest (and majority doesn’t address): Religious institutions and corporations can claim the
protection of s. 2(a) of the Charter. If the religious institution has a religious purpose that is being
pursued then they can be seen as a representative of that community in the form of a religious actor.
When an administrative decision (i.e., the discretionary decision of a minister implementing a
statutory mandate) is alleged to breach the religious freedom of a religious community, the Court’s
will review the decision on the basis of a reasonableness test: Asking not whether the decision was
correct, but rather whether it was reasonable and fits within the scope of the legislative framework that
has been granted? (i.e., an appropriate balance with Charter interest is met).
b) Religious Institution / School Wanting To Keep Values / Beliefs Within Institution
that are discriminatory but not proven to cause discrimination in the real world by
their graduates:
Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772
Individuals should be free to attend private religious institutions (with underpinnings of discriminatory
beliefs) to receive education, and further should be free to participate fully in society, absent of any
objective evidence that this training causes them to actually act in a discriminatory manner.
There is a difference in s. 2(a) protection of belief and protection of action.
Absent of any evidence of a conflict between s. 2(a) and s. 15(1), such as discriminatory beliefs
actually leading to actions / conduct that is discriminatory, any restriction on s. 2(a) will likely be
unjustified.