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  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  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  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  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  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)  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.  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.,  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)  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)  ONCA Pushing towards state neutrality—mayor of town—Lord’s prayer… Mouvement laïque québécois v. Saguenay (City)  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  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  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  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  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  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,  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  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  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)  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  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.