ADOPTION OF THE CHARTER 3
T HE H ON .
P IERRE E LLIOTT T RUDEAU (M INISTER OF J USTICE ), “A C ANADIAN C HARTER OF H UMAN
R IGHTS ”
C AIRNS , “C HARTER V ERSUS F EDERALISM : T HE D ILEMMAS OF C ONSTITUTIONAL R EFORM ”
3
3
R USSELL , “T HE P OLITICAL P URPOSES OF THE C ANADIAN C HARTER OF R IGHTS AND F REEDOMS ” 3
W EINRIB , “O F D ILIGENCE AND D ICE : R ECONSTITUTING C ANADA ’ S C ONSTITUTION ” 4
W EINRIB , “C ANADA ’ S C HARTER OF R IGHTS : P ARADIGM L OST ?”
G OLD , “T HE M ASK OF O BJECTIVITY : P OLITICS AND R HETORIC IN THE S UPREME C OURT OF C ANADA ”
4
4
B OGART , “C OURTS AND C OUNTRY ”
P ETTER , “I MMACULATE D ECEPTION : T HE C HARTER ’ S H IDDEN A GENDA ”
W EINRIB , “L IMITATIONS ON R IGHTS ’ IN A C ONSTITUTIONAL D EMOCRACY ”
5
5
5
H OGG AND B USHELL , “T HE C HARTER D IALOGUE B ETWEEN C OURTS AND L EGISLATURES (O R
PERHAPS THE C HARTER OF R IGHTS ISN ’ T SUCH A BAD THING AFTER ALL )”
I ACOBUCCI J.
IN V RIEND V .
A LBERTA , [1998]
6
6
DEFINING LIMITATIONS: SECTION 1 AND THE OAKES TEST
H UNTER V .
S OUTHAM , [1984]
M ACKLEM , “S OCIAL R IGHTS IN C ANADA ”
R.
V .
N OVA S COTIA P HARMACEUTICAL S OCIETY
R.
V .
O AKES , [1986]
E DMONTON J OURNAL V .
A LBERTA
I RWIN T OY L TD V .
Q UEBEC
FREEDOM OF RELIGION: THE SCOPE OF S.2(A) OF THE CHARTER
M OON , “L IBERTY , N EUTRALITY AND I NCLUSION ”
R.
V .
B IG M D RUG M ART L TD , [1985]
FREEDOM OF RELIGION: THE RESTRICTIONS AND ACCOMMODATION OF RELIGIOUS
PRACTICE 15
S MITHEY , “R ELIGIOUS F REEDOM AND E QUALITY C ONCERN ”
M OON , “R ELIGIOUS C OMMITMENT AND I DENTITY ”
S YNDICAT N ORTHCREST V .
A MSELEM , [2004]
15
17
18
M ULTANI V .
C OMMISSION SCOLAIRE M ARGUERITE -B OURGEOYS , [2006] 21
C ARTER AND L ANGAN , “C ANADIAN S UPREME C OURT G IVES S TRONG E NDORSEMENT TO F REEDOM OF
R ELIGION ”
A LBERTA V .
H UTTERIAN B RETHREN OF W ILSON C OLONY , [2009]
M OON , “A CCOMMODATION W ITHOUT C OMPROMISE ”
23
25
28
B ERGER , “C ONSTITUTIONAL R EASONING AND C ULTURAL D IFFERENCE : A SSESSING THE I MPACTS OF
A LBERTA V .
H UTTERIAN B RETHREN OF W ILSON C OLONY " 30
RELIGIOUS FREEDOM
B RUKER V .
M ARCOVITZ , [2007]
31
31
6
6
7
8
9
11
12
13
13
14

O GILVIE , “(G ET ) TING O VER F REEDOMS IN C ANADA ”
M OON , “B RUKER V .
M ARCOVITZ : D IVORCE AND THE M ARRIAGE OF L AW AND R ELIGION ”
MINORITY RIGHTS AND SECTION 27 OF THE CHARTER
C ANADIAN C HARTER OF R IGHTS AND F REEDOMS : S ECTION 27
K YMLICKA , “T HE N EW D EBATE ON M INORITY R IGHTS ”
Y OUNG , “S TRUCTURAL I NJUSTICE & THE P OLITICS OF D IFFERENCE
B OUCHARD -T AYLOR R EPORT (C ASEBOOK 878-880)
R.
V .
N.S., [2012 ]
THINKING ABOUT INDIGENOUS LEGAL ORDERS 41
N APOLEON , “T HINKING ABOUT I NDIGENOUS L EGAL O RDERS ”
N APOLEON , “I NDIGENOUS L EGAL O RDERS AND THE C OMMON L AW ”
41
42
H ENSHAW , “T HE W ETIKO ” 42
N IEZEN , “C ULTURE AND THE J UDICIARY : T HE M EANING OF THE C ULTURE C ONCEPT AS A S OURCE OF
A BORIGINAL R IGHTS IN C ANADA ” 42
EQUALITLY RIGHTS V. RELIGIOUS FREEDOM
O KIN , “I S M ULTICULTURALISM B AD F OR W OMEN ?”
V OLPP , “F EMINISM V ERSUS M ULTICULTURALISM ”
42
42
44
EQUALITY RIGHTS AND S15 OF THE CHARTER (1231-1247)
A NDREWS V .
L AW S OCIETY OF B RITISH C OLUMBIA , [1989] (1237-1247)
S HEPPARD , “C ONSTITUTIONAL E QUALITY : C HALLENGES & P OSSIBILITIES ”
44
45
48
EQUALITY AND S.15 OF THE CHARTER 51
L AW V .
C ANADA 51
R YDER , “W HAT ’ S L AW G OOD F OR ?”
S AMPSON , “LEAF AND THE L AW T EST FOR D ISCRIMINATION : A N A NALYSIS OF THE I NJURY OF L AW
56
AND H OW TO R EPAIR I T ” 57
R V .
K APP , [2008]
M OREAU , “R V .
K APP : N EW D IRECTIONS FOR S ECTION 15”
W ITHLER V .
C ANADA (A TTORNEY G ENERAL ), [2011]
59
63
63
32
34
36
36
36
38
39
39
GROUNDS OF DISCRIMINATION & INTERSECTIONALITY
P OTHIER , “C ONNECTING G ROUNDS OF D ISCRIMINATION TO R EAL P EOPLE ”
C ORBIERE V .
C ANADA , [1999]
SEXUAL ORIENTATION AS A GROUND FOR DISCRIMINATION
W INTEMUTE , “S EXUAL O RIENTATION AND THE C HARTER ”
R EFERENCE RE S AME S EX M ARRIAGE , [2004]
C OSSMAN , “S EXING C ITIZENSHIP , P RIVATIZING S EX ”
FREEDOM OF EXPRESSION UNDER S.2(B) OF THE CHARTER
R V .
K EEGSTRA , [1990]
M OON , “T HE C ONSTITUTIONAL P ROTECTION OF F REEDOM OF E XPRESSION ”
F ISS , “L IBERALISM DIVIDED F REEDOM OF SPEECH AND THE MANY USES OF STATE POWER ”
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72
73
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71

I RWIN T OY L TD V .
Q UEBEC , [1989]
HATE SPEECH
R V .
K EEGSTRA
S ASKATCHEWAN H UMAN R IGHTS C OMMISSION V .
W HATCOTT
SECTION 15 AND RACE
T HORNHILL , “S O S ELDOM F OR U S S O O FTEN A GAINST U S ”
W ILLIAMS , “A LCHEMICAL N OTES : R ECONSTRUCTING I DEALS ”
The Charter seeks to protect the individual dignity of each Canadian
Natural rights
Aquinas stated that natural law was superior to man made law, and thus applied to rulers and kings not just commoners
- Locke/Rousseau: if they weren’t adhered to, rebellion/disobedience were justified
(Written in 1968)
Erosion of Britishness (the understood Rights principles)
Canada’s minority populations naturally drawn to the idea of judicially entrenched rights and away from majoritarianism
- the clear/visible written code was considered essential, not just the unspoken respect thereof
Charter of 1982 gave rise to a dramatic escalation of nationalism
- the biggest influencer of this “human rights revolution” was the United
Nations (1945 Charter, and 1948 Declaration of Human Rights)
Two purposes to the Charter:
1. contribute to national unity
2. to protect rights
Focus of article is on #1.
Discussion of repatriation caused Quebec to enter into a new phase of nationalism
Both Prime Ministers Pearson and Trudeau made the Charter of Rights the
number one priority in Constitutional change
* Including language rights
73
76
76
79
81
81
81

So the Charter unified Canadians. But Quebec was against it because it gave language rights to minority Anglophones inside Quebec, and minority Francophones outside of it.
- Quebec wanted to be the only representative of Francophonie in Canada
The inseparable attachment of repatriation and Charter that Trudeau put forward shows how strongly the Trudeau government believed in the nation-building constitutional Charter
Initial attempts at repatriation culminated with the failed Victoria Charter introduced at the First Minister’s Conference in Victoria, BC, in 1971
Bill C-60 of 1978: expanded upon the limited scope of the Victoria Charter’s protection of rights to include freedom of the press, right to life, liberty, and security of the person, minority language education rights, etc.
Expanded rights protected, but weakened the mode of protection
Entrenchment of the Charter found Politicians wary of reducing their power, pitted against individuals and minority groups intent on securing just that
- Institutional legitimacy played a prominent role in the formulation of the
Charter
- Formally established judicial review
- s.1: guarantee and limitation clause, s.33: the notwithstanding clause
- These mark the culmination of negotiations between Prov/Fed Govs
- Constant battle back and forth as favour shifted
Limitations Clause was one such source of contention
Eventually it reached its current accepted state:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
* (734) s.33 was created by the Ministers to install a legislative override mechanism over those rights that the ministers believed should not rest for final determination in the courts: fundamental freedoms, legal rights, and equality rights
- “Charter effected a revolutionary transformation of the Canadian polity from legislative supremacy to constitutional supremacy”
The SCC originally ruled that the Fed repatriation initiative was legal but required a
“substantial measure of provincial consent” (eventually the 7-50 rule)
- Charter and constitutional change was initially opposed by Quebec and 7 other provinces (the Gang of Eight) but mistrust of Quebec’s motives was so bad that the other 7 provinces formulated their own package of proposals, which were eventually accepted
- (735) The provinces were willing to abandon Quebec to secure a deal

Antagonism towards the Charter can be summed up in three points:
1. MP’s have been the more effective vehicle for improving the lives of
Canadians
2. The best chance for vigorous/responsive/respected democracy comes from elected representatives
3. Access to the courts is incredibly expensive, which privileges the rich
Argues that the Charter, while sold as a “people’s package”, is actually a regressive instrument that undermines the interests of socially/economically disadvantaged
Canadians
Charter rights are predominantly negative in nature, protecting individuals from state interference or control with respect to this matter or that
- Systemic bias in the Charter rights enumerated towards the upper-middle class
- Does not touch the rights that do not concern this class: property, food, jobs.
The large majority of our social victories this century have come in the democratic
(legislative) arena and not the judicial (ex. Women’s rights, worker’s rights, etc.)
The Charter freezes rights instead of allowing for social change
The cost of gaining access to the judicial arena is often insurmountable
 Supremacy of Rights Model  Rights protection operates at a higher level of law (supreme law) – certain irreducible substantive values to which all other lawmaking must conform. o Welcomes judicial protection of individual rights o Perceived inadequacies of majoritarian politics o Protection of individual rights and freedoms is the aim of collective political life
 Doesn’t dismiss majoritarian politics - just recognizes that it can lapse in its commitment to individual rights.
 Representative branch of government should exercise its powers of policy formation under the watchful eye of the judiciary o Courts are important law creators o Rights-declaring text still needs constant interpretation (not absolute)
 Enumerated rights not absolute in majoritarian model either, but here there is a commitment to rather than departure from rights protection.
 Charter rights should cede only to those deeper principles from which they emanate.
 Criticisms of the Charter: o Initially from the Left = feared judges would use their role to enforce socially desirable conduct
Later from the Right = fear illegitimate “judicial activism” and view courts as acting undemocratically (against majority interests).

Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to see the relationship between the Legislator and the Judiciary as a dialogue
- In Charter debates, the judicial decision attracts more attention to the topic than it would have otherwise
- In striking down a law, the Court often gives suggestions as to how it may be changed or improved
Four features of the Charter enable dialogue:
1. s.33
2. s.1 (Reasonable limits clause)
3. the ‘qualified rights’ in s. 7, 8, 9, 12 (allowing for action that satisfies standards of fairness and reasonableness)
4. the guarantee of equality rights under s.15(1) (which can be satisfied through a variety of remedial measures
Seeing the Charter as giving non-elected judges a veto over the democratic will of legislative bodies is a mistake
- The decisions of the SCC almost always leave ‘legislative wiggle-room’ on purpose
Alberta legislature purposefully excluded sexual orientation from a list of unjustifiable violation or equality rights
- Alberta argues that Court has no place/is illegitimate interfering in this matter of the legislature
- Iacobucci J. mentions the Hogg/Bushell piece
It was the deliberate choice of the Prov/Fed govs to give the Courts their interpretive role
- The Charter has provided for a more dynamic interaction between the different branches of government
* The Court ultimately rules to ‘read in’ sexual orientation to Alberta’s legislation
The Purposive Approach
- a judgment about the scope or value of a particular right can only be made after the court has “specified the purpose underlying” the right or “delineated the nature of the interests it is meant to protect.”
Facts:
Search of newspaper offices carried out by Combines Investigation Branch.
Statutory basis for search did not require judicial authorization. Argue that

Combines Investigation Act violates s.8 Charter guarantee of freedom from unreasonable search and seizure.
Issue:
How should the term “unreasonable” in the s.8 guarantee be interpreted?
Legal Reasoning (Dickson CJC):
 Guarantee is vague and open o Need for broad perspective when interpreting constitutional documents o No context on s. to provide interpretive guide
 Function of the Constitution: o To provide continuing framework for legitimate exercise of governmental power. o When paired with Bill or Charter of rights, to protect individual rights.
 Unlike statutes, constitution is drafted with an eye to the future  “living tree” o Must interpret specific provisions in light of document’s larger objectives
 Charter is a “purposive” document: o To guarantee and protect, within reasonable limits, the enjoyment of rights and freedoms it enshrines. o To constrain governmental action inconsistent with its content.
 Only constrains government action, does not itself confer any powers.
 Interpreting “reasonable” in s.8  Must focus on its reasonable or unreasonable impact on the subject of the search or seizure, not simply on its rationality in furthering some valid governmental objective. o First necessary to specify purpose of s.8 – to delineate the nature of the interests it is meant to protect. o In Canada, s.8 protects an individual’s reasonable expectation of privacy, it does not only relate to the property aspects.
Holding:
Whether search and seizure is “reasonable” should focus on impact of the
statute upon the subject, not just on government’s objective. In this case, s.8 is meant to protect individual’s reasonable expectation of privacy. Provisions of Act
violate Charter and are invalid.
Aids to Charter Interpretation
- Interpretive Provisions in the Charter
- Parliamentary and Committee Debates
- Canadian Pre-Charter Jurisprudence
- Comparative and International Sources
International law has become significant feature of judicial interpretation by the SCC of nature/content of rights and freedoms enumerated in Charter
- Dickson CJ in Reference re Public Service Employee Relations Act (Alberta),
[1987]: “the Charter should generally be presumed to provide protection at

least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.” (764)
Defining Limitations in s.1
- 1. All limits on rights must be “prescribed by law”
- 2. Limits must be “reasonable” and “demonstrably justified in a free and democratic society.”
Prescribed by Law:
- A limit on a Charter right must have the form of a law
- This promotes a) accessibility, b) intelligibility c) public accountability
Rule of Law values underlie the prescribed by law requirements
- Avoids vagueness
Facts:
Accused charged under Combines Investigation Act with conspiring to lessen competition unduly in sale of prescription drugs. They argue that provisions under which they are charged violate s.7 on grounds of vagueness.
Issue:
Do the relevant provisions violate s.7 on grounds of vagueness?
Legal Reasoning (Gonthier J):
 Doctrine of vagueness (founded on the rule of law) can be raised under: o S.1 = Might be too vague to satisfy “prescribed by law” requirement,
or to meet the “minimal impairment” stage of the Oakes test. o S.7 = Principle of fundamental justice that laws not be too vague
 Substantive sections of the Charter, whenever the sections comprise some internal limitation.
 Factors to consider in terms of vagueness: o Need for flexibility and interpretive role of the courts o Impossibility of achieving absolute certainty (rather test of intelligibility) o Possibility of varying judicial interpretations
 Courts rarely find a disposition so vague as to not qualify as “law” under s.1
– will generally deal with vagueness at “minimal impairment” stage.
 Fair Notice to the Citizen: o Formal aspect = acquaintance with actual text of a statute o Substantive aspect = subjective understanding that the law touches upon some conduct based on substratum of values underlying the enactment
 Limitation of Law Enforcement Discretion: o To prevent “standardless sweep”  Law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute.
 Scope of Precision: o An unintelligible provision gives insufficient guidance for legal debate.
Debate is important because it limits enforcement discretion by

introducing boundaries and sufficiently delineates area of risk to allow for notice to citizens.
 Vagueness and the Rule of Law: o Modern state interferes today in fields where some generality in enactments is necessary – but the substance of the enactments still remains intelligible. o Doctrine of vagueness should not be used to prevent or impede state action in furtherance of valid social objectives by requiring it to achieve an impossibly high degree of precision. o What is problematic is not the conferring of broad discretion, but the failure to give direction as to how that discretion should be exercised.
Holding:
No. Ruled for the Crown, appeal dismissed.
Facts:
Narcotics Control Act s.8 created “rebuttable presumption” that once narcotics possession was proven, intention to traffic would be inferred unless the accused established the absence of such intention. Oakes charged under Act and challenged
“reverse onus,” arguing that it violated s.11(d) of the Charter (innocent until proven guilty). The court found that it did, in fact, violate his Charter rights under s.11(d).
Issue:
Having found that s.8 does violate s.11(d) of the Charter, can that limit nonetheless be upheld under s.1?
Legal Reasoning (Dickson CJC):
 Function of s.1 is to guarantee rights set out in Charter, but also to explicitly state the justificatory criteria against which limitations on rights and
freedoms must be measured.
 Rights and freedoms in Charter are not absolute. It may become necessary to limit them where their exercise is inimical to realization of collective goals of fundamental importance.
 Onus of proving that the limit is justified is on party seeking to limit the right (usually the government). Standard of proof is “proof by a preponderance of probability.”
* Oakes Test
1.
Pressing and Substantial: The objective which the limit is designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right or freedom (pressing and substantial in concern)
2.
Proportionate: If sufficiently significant, must show that the means chosen are reasonable and demonstrably justified (a kind of proportionality
test). a.
Rational connection: measures should be designed specifically to achieve the objective in question b.
Minimal impairment

c.
Proportionality between effects of measures and objective identified
(the more deleterious the effects, the more important the objective must be).
 With respect to Oakes, court concluded that: o Objective of protecting society from ills associated with drug trafficking was of sufficient importance to warrant limiting Charter right. o However, the means chosen to implement the objective (reverse onus) failed the rational connection step of the proportionality test. No rational connection between possession of small quantity of drugs and intent to traffic.
Holding:
No. Though the objective is of sufficient importance to warrant limiting a Charter right, the means chosen to implement it (reverse onus) fails the rational connection stage of the proportionality test.
Notes: The Oakes Test
1) Pressing and Substantial Purpose
 Courts rarely find a restriction fails this first step = seem prepared to regard almost any purpose as “pressing and substantial” provided it doesn’t directly violate the Charter.
 Prefer to take account of insubstantial purpose at second stage of Oakes test.
 “Shifting purpose”  Could not rely on a purpose different from that which animated the law at the time of its enactment, but does not preclude a shift in emphasis.
2) Rational Connection and Minimal Impairment
 Consider the means chosen to advance the purpose  effectiveness and scope o Rational connection = rationally advances stated purpose o Minimal impairment = restricts scope of impairment upon right in question only as much as necessary
 If a restriction fails, usually fails at this step
 Though both are presented as value-neutral tests, it isn’t clear they live up to this. Both will call for some aspect of relativity or value judgment to be made in the analysis.
3) The Final Balance
 “Deleterious effects test”  Requires proportionality between the effects of
the measures limiting the Charter rights and the objective identified.
 Dagenais refinement = In applying this test, courts must consider not only the objective of the impugned law, but also its salutary effects (weigh the detrimental/beneficial effects). o Even if the importance of the objective itself (in the abstract) outweighs the deleterious effects, it is still possible that the actual effects will not be sufficient. o Requires that courts weigh the law’s actual benefits with its actual
costs.

* Subsequent Development of the Oakes Test: Context and Deference
1) Contextual Approach  Requires that the courts assess the value or significance of the right and its restriction in their context rather than in the abstract (see
Edmonton Journal)
 SCC has held that certain forms of expression such as hate promotion are
“less valuable” than other forms of expression and that this value is a relevant contextual factor in balancing under s.1
2) Deference  Courts are increasingly willing to defer in certain circumstances to the legislature’s judgment about the need for and effectiveness of particular Charter limits.
Facts:
Newspaper challenging s.30(1) of the Alberta Judicature Act, which limited the publication of information arising out of the court proceedings in matrimonial disputes. Newspaper claims that law violates freedom of expression, while AG argues it is necessary to protect individual privacy.
Issue:
Does s. 30(1) of the Judicature Act infringe on freedom of expression? If so, it is justified?
Legal Reasoning (Wilson J):
The Act unjustifiably infringes on freedom of expression
 Problem is that the values in conflict in this case are the right of litigants to the protection of their privacy in matrimonial despites, and the right of the public to an open court process. o Adopts contextual as opposed to abstract approach to Charter interpretation. o Should not be an issue of balancing private interests against the public interest as a whole. Both are public interests. The interpretation should focus on balancing the rights contested in the particular context. o * One right may have more importance in a particular circumstance
 Dagenais  Requires courts to balance actual impact of impugned law on the affected right and its contribution to the government’s pressing and substantial public purpose.
 In certain contexts, courts should defer to legislative judgment on the importance of the purpose and the justification for limits on Charter rights.
Holding: s. 30(1) of the Judicature Act unjustifiably infringes on freedom of expression.
* Context
 Courts moving towards contextual versus abstract approach (must look at both rights and limits in their context)

 If you start looking at context, it leads to possibility that court will exercise discretion in ways that are too deferential.
 Attention to context also led to a belief in flexibility of the Oakes test, and greater deference to legislative judgment in some circumstances
Facts:
Quebec legislature enacted restrictions on advertising directed at children. Irwin
Toy challenging the law as an infringement of freedom of expression.
Issue:
Is the ban preventing advertising directed at children a justifiable infringement on freedom of expression? Should the court defer to the legislature’s judgment on such issues?
Legal Reasoning (Dickson CJC):
 With regard to certain issues, the courts must be mindful of the legislature’s representative function. If it can be found that the legislature has made a reasonable assessment as to where the line should be drawn, the court will defer to that decision.
 Greater deference to legislative choice is appropriate in a variety of circumstances: o Findings of fact by the legislature o Legislature’s accommodation of competing values or interests o Lowering of standard of justification under s.1 because of an understanding that legislatures often require this kind of flexibility.
 However, courts will not defer to legislature when the government is the singular antagonist as opposed to the mediator between different groups and interests.
Holding:
On findings of fact related to social science evidence, courts will defer to the legislature. The ban is a justifiable infringement on freedom of expression.
Deference  When is judiciary likely to defer?
 Take legislature’s word that objective is valid (pass step 1)
 When evaluating complex social science evidence or facts
 Where there are competing interests and balancing of groups
 Kinds of activities or areas of rights

S.2(a), the freedom of religion provision, protects the individual from ‘coercion in matters of conscience (Dickson CJ in Big M Drug Mart)
- prohibits state from restricting or compelling religious practice
- but doesn’t preclude state support of religion
- support of a particular religious institution will only breach 2(a) if it coerces members of the community/interferes with their ability to practice their faith, or compels them to practice a favoured religion
- however the courts have defined this broadly, so that the state is forced to be evenhanded with all religious institutions
Canadian courts have been hesitant to say outright that 2(a) doesn’t simply prohibit coercion in spiritual matters, but also the unequal treatment of different religions
Coercion and Exclusion:
2(a) is a freedom TO religion, but also a freedom FROM religion
All religions must be treated/respected equally in the public realm even if coercion isn’t the goal of their actions
- the shift from coercion to exclusion (religious imposition rather than compulsion)
Freedom of Conscience and Respect for Religious Identity:
Locke was a founding theorist supporting religious freedom
The true path to God could only be made willingly; understanding of the nature of religious truth = to be meaningful it had to be voluntary
- however this never meant its exclusion from the public sphere
Modern religious freedom:
- less to do with the religious truth of the belief
- deserving respect because it represents a significant personal commitment/is a key part of the individual’s identity
- Religion as identity
Public and Private Religion:
Commitment to equal treatment of different religious beliefs seems to require the privatization of religion (exclusion of religion from public sphere/public debate)
- the public sphere must turn from religion completely and focus on non-religious concerns/values
- BUT does this secularism represent, to some, favouritism towards the atheist part of the population rather than a neutral ground?
Chapter 19: Freedom or Religion (Notes 837-843)
Two levels of religious freedom:
1. The state cannot force someone into a particular religion
- no state religion
- no religious affiliation in state schools or institutions (establishment of religion)
2. Protection of free exercise of religion

- the state can’t interfere with any religious group’s belief/practice
Difficult question of ‘non religion’ v. religion
Also difficult to define what defines ‘religion’/’religious’
- early religion Charter cases produced a dramatic reduction in the religious framing of life in Canada that coincided with general societal trends
- what about religions that disagree with sex-ed in school or the promotion of contraceptives?
Facts:
The Federal Lord’s Day Act made it an offence for anyone to carry on or engage in business on a Sunday. Big M was charged under it for carrying on the sale of goods on a Sunday. Big M is challenging on the basis of the law unjustifiably infringing on his “freedom of conscience and religion” entrenched in s.2.
Issue:
Does the law infringe upon Big M’s freedom of conscience and religion, and if so does it invalidate the law?
Reasoning: (SCC Dickson CJ)
Purpose and Effect:
Freedom of religion is recognized as a Federal matter
There are two possible legislative purposes for the law:
- Religious
- Uniform day of rest
The purpose of the legislation is clearly religious and has been long-established and consistently maintained in Canada
- both purpose and effect are relevant in determining constitutionality
-either an unconstitutional purpose or an unconstitutional effect can
invalidate the legislation
Test:
1. Does the legislation’s purpose violate a Charter right/freedom?
2. Do the legislation’s effects violate a Charter right/freedom?
Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and is not a shifting variable
- Therefore it is necessary to find that the purpose of the Lord’s Day Act is the compulsion of religious observance (as it was when it began in English Law in 1677)
Freedom of Religion:
Freedom can be primarily characterized by the absence of coercion or constraint (846)
- this embraces both the absence of coercion/constraint as well as the right to manifest beliefs and practices
The Lord’s Day Act works a form of coercion prejudicial to the spirit of the Charter
- Forces Christian religious views on everybody
- not only against s.2(a) but also against s.27 (multicultural heritage of

Canada)
The Purpose of Protecting Freedom of Conscience and Religion:
The meaning of a right/freedom in the Charter must be ascertained by an analysis of the purpose of such a guarantee, in the light of the interests it was meant to protect
- interpretation should be a generous rather than a legalistic one
- Purpose, larger objects of the Charter as a whole, language, historical origins, context must all be taken into account
The state may not use the criminal sanctions at its disposal to achieve a religious purpose
Justification under s.1:
Main argument is that a secular universal day of rest is practical for Canada
- flawed argument, however, since it is religious, not secular
Holding:
The legislation is in pith and substance religious and unjustifiably infringes upon Big
M’s s.2(a) rights of freedom of expression and religion. The Act is ruled to be of no force or effect under s.52 Constitution Act, 1982.
Section 27 of the Charter declares it “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”
Many external positive views of the Charter aren’t shared on the home front
- the charter is criticized for having reduced legislative power, decreased chances for political compromise, and inhibited the state’s ability to adopt useful legislation
- most of the criticisms come from the transfer of power from the legislature to the unaccountable judiciary
- Charter has politicized the judiciary by granting judges too much discretion over policy questions
Critics on the right argue the Charter gives power to ‘equality seeking groups’ who seek advantages, not true equality, through Charter decisions
Critics on the left argue that it has retarded egalitarian processes (by constraining state action)
- both sides seem to forget religious minorities, focusing on racial/sexual/ethnic, etc.
Religious freedom is, however, a hot topic for the Charter
- s.2(a), 15(1), and 27 together provide for a menacing defense of religious prerogative
Rejecting State Sponsorship:
Canadian Charter contains no specific limit on government support for religion

- Judiciary has defined the sponsorship of one religion as discrimination against the others
- Limits the state’s ability to support religious practices
Sunday closing law cases:
- R. v. Big M Drug Mart, [1985]
- R v. Edwards Books and Art, [1986]
- in both cases Court found that the state’s imposition of a particular religious viewpoint constituted a violation of s.2(a)
- however in Edwards, it was deemed a reasonable limitation according to s.1
Despite the lack of textual limits, concerns for minority religious beliefs are used to limit the ability of the state to promote a particular religious viewpoint
- Zylberberg v. Sudbury Board of Education, [1988]
- CCLA v. Ontario, [1990]
- involved the observance of religious practices in school settings; in both cases courts struck down the regulations as ‘conformist’ and ‘stigmatizing’
(96)
- exemptions weren’t enough
Laws Infringing Belief:
Challenges to general laws that were adopted for reasons unrelated to religion
- * In general, laws that were not intended to promote religion, but have come in conflict with believers’ spiritual principles anyways, have not had trouble in the courts
Jones v. The Queen, [1986]
- minister charged under Alberta School Act with not sending his children to an accredited school, and teaching them, and some other kids, in the basement of the church instead
- Court held that the violation with J’s freedom of religion/conscience was minimal/justified by state’s interest in educating youth
Young v. Young, [1993]
- Divorced Jehovah’s Witness challenged a trial court order denying him the right to proselytize his children/take them to sectarian events during visitation periods
- Court saw the case as a question of child welfare (in the best interests of the child) and thus could not violate Charter rights that the parent might have
Adler v. Ontario, [1996]
- law required children 6-16 to attend public/private school unless “receiving satisfactory instruction elsewhere.”
- Adler parents felt compelled by religion to send children to schools consistent with their faith, therefore they claimed that Ontario’s compulsory attendance laws required them to send their children to private schools (and bear a financial burden that others wouldn’t have to)
- They wanted the funding of independent school to make up for this
- Court ruled that the extra cost was constitutional because it resulted not from a “prohibition of a religious practice but the absence of funding for one”

- The state isn’t required to make religious education possible for those who can’t afford it
Mix of decision results has resulted in neither the right or left accepting the claim that the text of the Charter provides any real constraints on judicial decisions
Iacobucci’s Decision set down 2 important points:
1. Freedom of religion protects practices that are not part of an establisehed religious belief system. A spiritual practice or belief will fall under the protection of section 2(a) even though it is entirely personal and not part of a widely-held religious belief system.
2. A practice will be protected under section 2(a) even though it is not regarded as obligatory by the individual claimant. Freedom of religion protects cultural practices that have spiritual significance for the individual,
“subjectively connecting” him to the divine
Points that do not sit easily together
Argument was that the prohibition on Succahs amounted to an indirect restriction on their religious practice
Author: - the personal succah was not mandatory to the Jewish faith; it was only more “convenient or less burdensome” than the communal one offered by the Syndicate (206)
Bastarache’s Dissent:
- Much narrower approach to freedom of religion
- Religion as a system of beliefs and practices based on certain religious precepts
- must show a nexus between personal beliefs/precepts of their religion
- this enables a distinction between personal choice and genuine religious beliefs
Found no breach of religious Freedom
Binnie’s Dissent:
- rejected the argument that the plaintiffs had ‘waived’ their religious rights by signing the co-ownership agreement = wasn’t voluntary, wasn’t explicit
- however the plaintiffs are using freedom of religion as a sword here rather than as a shield, against their co-contractants
- the individual is the only one qualified to determine the content of an personal religious commitment, therefore it was their responsibility to make sure that the by-laws matched their religious needs in the
building
Uncertainty in the SCC:
1. Should religious adherence be regarded as a matter of personal choice, or as matter of cultural identity?
- if it is based on personal choice, shouldn’t it then uphold deeply held non-religious beliefs as well?

2. Does the freedom simply prohibit coercive state action (restriction/compulsion) or does it go further and prohibit the support of one religion over another?
- frequently, the court has held that all must be treated even-handedly
3. What place does religion have in public debate and decision-making?
- does religion in the public sphere amount to imposition or discrimination?
4. What is the meaning of secularism in the public sphere?
- is secularism a neutral ground outside religious controversy or a partisan non-religious perspective in competition with religious world views?
Interesting to note that the Charter lists freedom or religion and conscience together
- appears to protect a single right
Challenge is to fit this ambiguous conception of religious commitment and individual agency into a rights model
Facts:
Appellant is Orthodox Jew and divided co-owner of unit in building owned by
Syndicat Northcrest. Signed contract of co-ownership which said nothing could be built on balconies. A and others set up succahs on balconies to fulfill biblical obligation of Succot. SN ordered them to remove succahs because they violated the by-law. Offered them communal succah in the gardens, but A said it would cause hardship and violate their religious right to build their own succah. A refused to dismantle succah, SN filed injunction.
JH:
SN’s injunction granted by trial court and AC. By the time A appealed to SCC, case about breach of contract evolved into question of freedom of religion.
Issue:
1. Is there an infringement of freedom of religion?
2. If so, is it justified by the balancing of other rights?
3. Did the appellants waive their right to freedom of religion in the contract of coownership?
Holding:
(1) Yes. (2) No. (3) No. Appeal allowed.
Legal Reasoning: (Iacobucci J.)
1) Was freedom of religion infringed by declaration of co-ownership?
 Definition of “freedom of religion”  should be regarded as a personal or subjective freedom and as such, claimant need not ground claim in any objective religious obligation, requirement or precept to
invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, which attracts protection. All that must be demonstrated
is sincerity of the belief.
What constitutes infringement of freedom of religion? Claimant must show that:
 1. He has a practice or belief, having a nexus with religion, which calls for a particular line of conduct either by being objectively or subjectively obligatory or customary… there is no requirement for a particular practice

or belief to be required by official religious dogma or be in conformity with
the position of religious officials (it is an individual approach).
 2. Sincerity of belief and conscience must be demonstrated, not
validity of belief and even then inquiries into sincerity should be as limited as possible, intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. In this case expert testimony could support a claim as to the sincerity of an individual’s belief but is in no way necessary
to validate that belief.
 3. Non-trivial interference  Once religious freedom is triggered, court must ascertain whether there has been non-trivial / non-insubstantial interference with exercise of that right so as to constitute an infringement of freedom of religion under Quebec (or Canadian) Charter.
 4. Balance  Even if claimant successfully demonstrates non-trivial interference, religious conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. Ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises.
 Yes, there was an infringement of religious freedom. Preventing appellants from building their own succah constitutes a non-trivial interference with and
thus an infringement of protected rights to dwell in a succah during Succot. A communal Succah would impermissibly detract from the joyous celebration of the holiday and is thus not in accordance with the religious beliefs of one of the appellants.
2) Is that infringement justified in accordance with other rights in the Quebec Charter
– the right to personal security (s.1) and the right to enjoy property (s.6)?
 Respondent claimed that setting up succahs on balconies would interfere with the co-owners' rights – of peaceful enjoyment of their property (s.6) and the right to personal security (s.1).
 Argues that these violations justify total blanket prohibition against setting up the succahs.
 No, infringement is not justified. Alleged intrusions or deleterious effects on co-owners' are, under circumstances, at best minimal and thus cannot be reasonably considered as imposing valid limits on exercise of appellants' religious freedom.
3) Did the Jewish residents waive their right to religious freedom by signing the declaration of co-ownership? Can one waive religious freedom?
  Even if a Charter right could theoretically be waived (not yet
established), this contract would not constitute such a waiver.
 Since the only way they could reside at the residence was by signing the contract (adhesion contract), it would be insensitive and morally repugnant to intimate that the appellants simply move elsewhere if they take issue with a clause restricting their right to freedom of religion.

 Clause in question was general prohibition (not even absolute) on constructions. In order to waive fundamental right, would have to
make explicit reference to Charter right in the clause.
Waiver of rights must be voluntary, freely expressed and with clear understanding of true consequences and effects of so doing if it is to be
effective. The appellants were clearly unaware of the waiver in this case and it was the last thing on their minds as some even sought balconies with open roofs to the heavens for the purpose of setting up a succah.
Bastarache, LeBel and Deschamps JJ. (dissenting):
What must the claimant show for freedom of religion to be triggered?
Claimant must demonstrate:
 1. The existence of an objective religious precept
 2. A sincere belief that the practice dependent on the precept is mandatory
 3. The existence of a conflict between the practice and the rule.
How does this differ from majority? Here, claimant must establish that he has a sincere belief AND that this belief is objectively connected to a recognized
religious precept. Sincerity of belief is not sufficient here – must have some basis in religious authority, expert witnesses useful here.
 Infringement on the claimant’s right must be more than trivial or insubstantial.
Purpose v. Right of Religious Freedom  Even if all religious conduct that could infringe on / affect rights of others in a private law context are protected a priori by the purpose of the freedom of religion, they are not necessarily protected under the right to freedom of religion.
 S.9.1 of Quebec Charter states that the rights and freedoms subject to s.9.1 (including freedom of religion) must be exercised in relation to one another with regard for democratic values, public order, and
the general well-being of citizens.
 So, while the purpose of freedom of religion is defined broadly, the right to freedom of religion is restricted by the provisions of the Quebec
Charter.
Balancing rights  Par. 1 of s.9.1 requires not merely a balancing of respective rights, but a reconciliation of all the rights and values at issue. It requires that a compromise be found that is consistent with the public interest in the context
of the case. Court must ask:
 Has the purpose of a fundamental right been infringed?
 If so, is this infringement legitimate, taking into account democratic values, public order, and the general well-being?
 A negative answer to this question indicates violation of a right.
 The precept / purpose of the religious obligation is to eat meals in A succah.
There is no religious support for the claim that it must be one’s own succah.
 The right to eat in a succah is the right that is protected by freedom
of religion – not the right to eat in one’s own succah.

 Only Amselem demonstrated a sincere belief that he must build his own succah – so only Amselem moves to step 2 of the test.
Infringement is legitimate as it allows all other co-owners to exercise their Charter rights to free enjoyment of their property and security of person.
Infringement justified in conformity with CCQ 1056.
 In addition, appellants rejected compromise of communal succah, suggesting to trial judge that they were inflexible and unwilling to compromise.
Binnie J. (Dissenting):
What is the real issue here?
 Not a case of freedom of religion – at the heart of it, it is a matter of contractual obligations.
 Appellants accepted terms of declaration of co-ownership = freely entered into a contract.
Their acceptance was an implicit agreement that they would not insist on the construction of personal succahs on their communally owned balconies.
 *Freedom of religion should not be used a sword against cocontractors in a private building but only as a shield against
interference with religious freedoms by the state.
It was for the appellants, not the other co-owners, to determine in advance of their purchase what their particular religious beliefs required. They had a choice of buildings in which to invest. They undertook by contract to the owners of this building to abide by the rules of this building even if (as is apparently the case) they accepted the rules without reading them.
 The appellants should be forced to abide by the terms of their contract. It was their responsibility to ensure beforehand that their co-owned building would be amenable to their religious observances.
Facts:
G was an orthodox Sikh believing his religion requires him to wear a kirpan at all times (resembles a dagger and must be made of metal). School board sent G’s parents note after G dropped the kirpan in the school yard, agreeing to let G wear the kirpan as long as it was securely sealed inside his clothing. G and parents agreed, but the governing board of the school refused to ratify the agreement because it violated article 5 of the school’s code of conduct (Code de vie) which prohibits carrying weapons. The school board’s council of commissioners agreed, notified G’s parents that he could wear a symbolic pendant or dagger in a harmless material instead. This action was then brought by G and his parents.
JH:
Trial: Superior Court granted M’s motion of declaratory judgment that the council’s decision was null, authorized G to wear his Kirpan under certain conditions.
Appeal: decided that the applicable standard of review was reasonableness
simpliciter, and restored the council’s decision. Concluded that the decision

infringed upon G’s freedom of religion under 2(a) of Canadian Charter as well as 9.1 of the Quebec Charter but that it was justified.
Issue:
Is the prohibition of kirpans in school an infringement on freedom of religion and if so is it justified?
Majority Reasoning: (SCC Charron J.)
Any infringement of a guaranteed right that results from the actions of a decision maker acting pursuant to its enabling statute is a limit “prescribed by law” within the meaning of s.1 Charter
- It must be subjected to the test set out in s.1 to ascertain whether it is a reasonable limit
- The court does not have to reconcile two constitutional rights, since only
Freedom of Religion is in issue
- However, that freedom is not absolute and can conflict with other constitutional rights
Since Oakes, it has never been contested that rights must be reconciled through constitutional justification required by s.1 Charter
- this type of contextual analysis makes it possible to balance relevant competing values in a more comprehensive manner
The council of commissioner’s decision to reject accommodation of the kirpan infringes G’s freedom of religion
- G genuinely believes that he has to wear a metal dagger to comply with the requirements of his religion (reeks of Amselem)
- The interference is neither trivial nor insignificant (it has deprived him of his right to attend public school)
The infringement of G’s freedom of religion can’t be justified under s.1 of the Charter
Section 1 Analysis:
- 1. The school board has a pressing and substantial objective
(ensuring safety of its students)
- 2. The decision has a rational connection with the objective
- 3. * It has not been shown that such a prohibition minimally
impairs G’s rights
The decision to establish an absolute prohibition against wearing a kirpan
does not fall within range of reasonable alternatives (Duty of Reasonable
Accommodation)
- The risk of G using the kirpan for violence is slim, especially if it is worn under conditions that were imposed by the Trial Court
- G has never claimed a right to wear the kirpan without restrictions
- There are plenty of other things at school that could be used for violent acts
(scissors, baseball bats, etc.)
- There has not been a single case of a kirpan being used for violence
“The existence of concerns relating to safety must be unequivocally established for the infringement of a constitutional right to be justified”
The argument that the kirpan represents symbol of violence is false and offensive
- contradicts evidence about the symbolic nature of the kirpan

- disrespectful to believers in the Sikh religion; fails to take into account
Canadian values of multiculturalism (stinks of Big M)
- Religious tolerance is crucial value of Canadian society and foundation of our democracy
Outlawing kirpans sends a message that some religious practices do not merit the same protection as others, while accommodating G under conditions shows the importance that Canadian society attaches to protecting freedom of religion and respecting minorities.
“The deleterious effects of a total prohibition outweigh its salutary effects”
Concurring Reasons: (Lebel J.)
- re-stated importance of establishing boundaries of the nature/scope of a right (“we not only have rights, we also have obligations”)
- the Court has never definitively concluded that all the section 1 justification analysis’ steps are relevant to every situation
- Since the statutory authority itself wasn’t being challenged, (instead the council’s decision to reject accommodation) it is pointless to review the objectives of the act
- the issue becomes one of proportionality: “minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed”
- the same conclusion could have been reached using the administrative law principles; s.1 review wasn’t really necessary
Concurring Reasons: (Justices Deschamps/Abella)
- Administrative law analysis: by applying the code of conduct literally instead of sufficiently considering the right to freedom of religion and the accommodation measure proposed (which posed little/no risk) the school board made an unreasonable decision
Holding:
The decision prohibiting G from wearing his kirpan constitutes an unjustified infringement on G’s religious freedom, and is rendered null. Appeal allowed.
Trial Court’s kirpan conditions:
- worn under clothing
- carried in a sheath of wood
- placed in sheath, wrapped/sewn securely in a cloth envelope, and the envelope sewn to the guthra
- school personnel must be authorized to verify that conditions are being met
- kirpan must be kept in his possession at all times; disappearance must be reported immediately
- failure to comply with the rules results in loss of right to wear the kirpan
Court of Appeal:

- stated that the applicable standard of review of the Trial court’s decision was reasonableness simpliciter (requires Trial court’s decision to be
‘clearly wrong’)
- The child’s freedom of religion could be limited in instances where the safety of others was at issue
The SCC:
- Administrative law principles shouldn’t be used to avoid a thorough constitutional analysis
- The complaint was based entirely on the issue of freedom or religion, therefore the administrative law standard of review wasn’t relevant
- G’s father wasn’t challenging the council’s jurisdiction or constitutional validity of the rule, he was concerned that the refusal to agree to a reasonable accommodation violated his son’s freedom of religion
In order to establish that a claimant's freedom of religion has been infringed, it must be shown that the claimant sincerely believes in a practice or belief that has a nexus with religion, and that the impugned conduct of a third party interferes with the claimant's ability to act in accordance with that practice or belief;
- This interference must be more than trivial or insubstantial
The child was being forced to choose whether to leave his kirpan at home, or whether to leave the public school system = infringement
Justifiable?
- The Charter infringement must be reasonable;
- The infringement is prescribed by law;
- The infringement is demonstrably justified in a free and democratic society, which requires that: o there was a pressing and substantial objective; o the means are proportional to the objective:
- The means are rationally connected to the objective;
- There is a minimal impairment of rights; and
- There is proportionality between the salutary and deleterious effects of the requirement.
Lebel’s concurring Reason:
- re-stated importance of establishing boundaries of the nature/scope of a right (“we not only have rights, we also have obligations”)
- the Court has never definitively concluded that all the section 1 justification analysis’ steps are relevant to every situation
- Since the statutory authority itself wasn’t being challenged, (instead the council’s decision to reject accommodation) it is pointless to review the objectives of the act
- the issue becomes one of proportionality: “minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed”
Justices Deschamps/Abella:

- administrative law analysis: by applying the code of conduct literally instead of sufficiently considering the right to freedom of religion and the accommodation measure proposed (which posed little/no risk) the school board made an unreasonably decision
Commentary:
Decision reaffirms Big M and Amselem
Reinforces fact that educators have a part to play in engendering tolerance for others’ culture/religion in Canadian society
- The SCC equally recognized that the administrative law standard of review (generally recognizing curial deference, which states that the courts ought not to intervene since tribunal’s knowledge/experience/expertise in the matter are better) was insufficient in cases determining whether a Charter right has occurred/is justified
Factors to consider in determining proper administrative standard of review:
- statutory rights of appeal,
- expertise of the tribunal,
- the purpose of the enabling legislation as a whole,
- the impugned provision in particular, and
- the nature of the problem
- Privative Clauses, (used through legislation to insulate administrative tribunals from courts)
Standards of Review Applicable:
- Patently unreasonable: (greatest deference to admin. tribunal)
- Reasonableness simpliciter: (mid-level deference to admin. tribunal)
- Correctness: (lowest deference to admin. tribunal)
Applying these standards in a Charter rights case was declared in Multani to be invalid
- In Charter rights cases the s.1 Constitutional justification analysis is better
- gives courts mandate for reviewing admin decision dealing with constitutional issues
Facts:
Alberta’s Traffic Safety Act requires all driver’s licenses to have a photo of the driver.
Exemptions had been granted to those who objected on religious grounds, but in
2003 made the requirement universal. Members of Hutterian Brethren believe their religion prohibits them from having their photographs. Though Alberta has offered accommodations, Hutterians object because hey still require the photo. They claim the requirement infringes s. 2(a) of the Charter. Alberta argued that infringement was justified, aimed at minimizing identity theft.
Issue:
Is the mandatory photo requirement an unjustified infringement of freedom of religion?
Legal Reasoning (McLachlin CJC)

The Nature of the Limit on the s.2(a) right:
 Slightly modified test for infringement of s.2(a): o Claimant sincerely believes in a belief or practice that has a nexus with religion; and o The impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than
trivial or insubstantial.
 Alberta conceded the first portion of test and with respect to second portion, the majority relied on their observation “the courts below seem to have proceeded on the assumption that this requirement was met.”
Can the Limit Be Justified Under s.1 of the Charter?
 Freedom of religion “presents a particular challenge” because many regulations in a modern state could be claimed by various individuals to have a “more than trivial” impact on a sincerely held religious belief. Giving effect to each of their religious claims could seriously undermine universality of many
regulatory programs.” o This approach implies significant deference to governments that breach the Charter right to freedom of religion in the face of complex regulatory regimes.
 Pressing and Substantial Objective  YES o Purpose of the photograph scheme is to minimize risk of identity theft, which is a serious problem requiring government response.
 Rational Connection  YES o Requiring photos on all driver’s licenses is rationally connected to the objective of reducing identity theft.
 Minimal Impairment  YES o Are there “alternative, less drastic means of achieving the objective in a real and substantial manner?” o Hutterian Brethren can find alternative means of obtaining transportation. o Hutterian Brethren proposed alternatives that would be less drastic, but majority held that any increase in risk of identity theft associated with the licensing system “does not assist at the stage of minimal impairment.”
 In determining whether there is minimal impairment, reasonable accommodation of religious belief and practice does not come into
play.
 Proportionality  YES o Salutary effects = Looked beyond the purpose of preventing identity theft - also looking at benefits of roadside identification and harmonizing
Alberta’s scheme with those in other jurisdictions. o Deleterious effects on freedom of religion = Perspective of a religious claimant must be considered “in the context of a multicultural, multireligious society where the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs.” o Distinguish circumstances where government imposes religious belief or

practice and where a mandatory regulatory scheme has incidental religious effects.
 Such schemes would require greater proportionate benefits to justify breaching religious freedom than the “inability to access conditional benefits or privileges,” such as a driver’s license.
* Three dissenting judges wrote two sets of reasons, but all agreed that majority went astray in proportionality analysis by treating the steps as “watertight compartments.” While majority maintains that a contextual analysis is only appropriate in the final step, dissenting judges hold that “context should be considered at the outset of the analysis in order to determine the scope of deference of courts to government.”
Abella J (dissenting)
 Agrees with majority that there is a pressing and substantial objective and that the means is rationally connected to that objective.
 Minimal Impairment  NO o Minimal impairment should focus on whether the right is impaired more than necessary, not whether the government’s goal is achieved as
efficaciously. o Government has not shown why the significantly less intrusive
measure proposed by the Hutterian Brethren was not chosen.
 No evidence that a driver’s license marked as not to be used for ID purposes would significantly interfere with the government’s objective.
 Proportionality  NO
 Salutary Effects: o Contrary to majority’s contention that “proof positive” of regulation’s positive effects are unnecessary, Abella cites SCC precedent to argue that only salutary effects that “actually result” should be weighed in the balance.
 Government has not discharged its burden or demonstrated that the salutary effects in these circumstances are anything more than speculation. o Because the system is not foolproof and thousands don’t even have licenses, the salutary effects of adding 250 Hutterians to the system are
“slight and hypothetical.”
 Deleterious Effects o Regulation threatens the autonomous ability of the Hutterites to maintain their communal way of life.
 Self-sufficiency is an essential element of the Hutterite faith o Added financial burden of hiring an outside driver. o “When significant sacrifices have to be made to practice one’s religion in the face of a state imposed burden, choice to practice one’s religion is no longer uncoerced.”

 Photo requirement is a form of indirect coercion = places the
Hutterians in untenable position of having to choose between compliance with religious beliefs or giving up self-sufficiency of their community.”
 The result is a disproportionate limitation that achieves minimal beneficial effects and significant negative effect.
LeBel and Fish JJ (dissenting)
 Proposed a more seamless test that analyzes the proportionality of impacts together with minimal impairment  “there should not be a sharp distinction between the steps;” the analysis should be “holistic.” o Means that religious accommodation should be considered in minimal impairment?
Holding:
Though the photo requirement infringes on the Hutterian Brethren’s freedom of religion, the majority held that the infringement could be justified under s.1.
Photo requirements, it was argued by the Hutterians, would force community members to choose between two elements of their religious commitment: Respect for the 2 nd Commandment (no pictures) and conformity to a way of life based on collective ownership and community independence/self-sufficiency
Trial:
- Judge found that there was an infringement
- Found a pressing/substantial objective
- But found that the restriction did not meet the minimal impairment requirement, since the province “had not accommodated the distinctive character of the burdened group” (standard in Multani)
Appeal:
- Majority of the Appeal Court agreed with Trial
SCC: McLachlin
- Majority of the SCC overturned the Trial/Appeal Courts’ decisions
- 1. Insists that minimal impairment part of the Oakes test doesn’t involve balancing of competing interests (any balancing should be deferred till the final step when the court weighs the costs/benefits of the restriction
- 2. Reasonable accommodation analysis is not appropriate when the court is considering whether a law that restricts a religious practice is justified under s.1
- constitutionality not responsive to unique needs of every individual claimant; instead responsive to whether infringement of Charter right is directed at an important objective and is proportionate in its overall impact
- comes down to benefits outweighing the costs (Impact of a religious exception vs. Realization of the state’s policy)
This rejection of reasonable accommodation shows a shift to a weaker standard of justification for state limits on religious practice

- State neutrality towards religion is only possible if we imagine that religion operates in an entirely different sphere from politics
- But with Reasonable Accommodation, the Court’s subjective understanding of Religion (it being an individual belief) means that state law might conflict with religious practice in a myriad of unpredictable ways (101)
* The court has to decide whether the law should be struck down as unjustified, not whether an exemption should be made for one particular individual or group
- However the accommodation scheme may be more appropriate where an administrative/government action, decision, or practice are concerned
(Multani)
In Hutterian, McLachlin notes that the law doesn’t compel people to have their picture taken; they can find another means of transportation (driving is a privilege)
(104)
- Legislators could not possibly tailor laws to every sincerely held religious belief
- Question is not whether an exception should be made, but whether the law is justified under s.1 and the Oakes test (in particular the final step of the test involving balancing of religious/state interests)
Does this remove the state’s duty to compromise its policies to make space for religious practices (108)?
Oakes Test:
- The part that most often proves unjustifiability is the minimal impairment test
- It asks whether “there is an alternative, less drastic means of achieving the objective in a real and substantial manner” (111)
For McLachlin, balancing of competing interests should be left until the last stage of the test (proportionality)
- Lebel and Abella: no “watertight compartments” balancing should be happening all along; for McLachlin, the pressing and substantial concern stage is enough to satisfy the minimal impairment stage in the context of a law of general application (112)
The analysis of Charter rights and infringements thereon have to made on a contextual case-by-case basis (113)
- “Freedom of religion claims may not fit well into the two-step structure of
Charter adjudication, which separates issues of breach and justification”
(114)
McLachlin: gives priority to the state’s policy asking only that the state make space for a religious practice it can do so without in any real way compromising this policy
- Lebel/Abella/Fish: The dissenting judges insist the state must make an effort to accommodate a religious practice, even to the point of compromising its pursuit of a legitimate public policy
- even when a law advances a legitimate public purpose (like protection against identity fraud) some attempt should be made to accommodate religious practices that are impeded or restricted, and this may involve some compromise of the law’s purpose (116)

Does this uphold the argument that religion should be protected as private even when it touches on matters of public concern or conflicts with law?
It is unclear how the court should proceed in balancing competing claims of public policy and religious freedom (accommodation or unassailability?)
The Canadian Religious Accommodation Cases:
- McLachlin notes in Hutterian that “reasonable accommodation bay be applicable to private sector restrictions but not to legal restrictions” (124)
Do earlier cases match up with the ruling in Hutterian?
- In earlier cases where accommodation was made (ex. Multani, Amselem,
Trinity Western University v. BCCT) it did so only because the exception would not compromise the law’s purpose in any meaningful way (128)
- “the potential risk to public policy was too speculative”
But the courts could protect religious freedom from state restriction through minor compromises without sacrificing its ultimate policy objectives (Lebel in Hutterian)
- a flexible approach to the minimal impairment test could permit these minor/pragmatic compromises of state policy to make room for religious practices
- in Hutterian: McLachlin unwilling to compromise in the slightest
- in Edward Books: Dickson not prepared to enlarge statutory exemption on
Sunday closing
- small accommodations granted to these minority practices, in a state reflecting the influences of a historically dominant religious community (Christianity) could have easily solved the problems (129)
Historically, the courts have been unwilling to require the state to compromise its policy in any significant way. The legislative objective is given priority and is not ‘balanced’ against the religious practice” (129)
- accommodation will be made only it if can be viewed as private, as separate or distinct from public concerns
Section 1 of the Charter sits at the heart of our constitutional lives
Most constitutional disputes have been shifted under s.1
- The Oakes test has guided the judicial approach to its application
- Both s.1 and the Oakes test represent the Canadian iteration of the logic of proportionality that lies at the hear of modern constitutionalism
- “The ultimate rule of law” (26)
Alberta v. Hutterian Brethren of Wilson Colony
- Will have large impact on how Courts strike balance between Gov objectives and individual/collective rights
- Represents a “gloss” on the Oakes test
- Does it represent a realignment of s.1 to be more deferential to legislators?

Facts:
During their divorce the parties (both Orthodox Jews) negotiated a “consent to corollary relief” by which they agreed to obtain a Jewish divorce (‘get’). Wife cannot remarry unless husband agrees, but husband reneged on his promise and refused to give the ‘get’ for 15 years. Wife seeking damages for breach of agreement. Husband argues that agreement is not valid under Quebec law, and he was protected by freedom of religion from being forced to grant the get.
Issue:
Is agreement valid and binding? If so, is husband protected by his freedom of religion?
JH:
Trial judge found agreement was valid and allowed wife’s claim for damages. AC reversed decision, finding that the substance of the obligation was religious and the obligation was a moral one – therefore not enforceable by the court. Wife appealed.
Legal Reasoning: (Abella J.)
Amendment to Divorce Act would provide court discretionary powers to preclude spouse from obtaining relief or proceeding when he refuses to remove a barrier to religious remarriage. Indicates that public interest is in removing barriers such as those presented by husband here.
Issue #1 – Validity of Contract
Agreement satisfies all CCQ requirements to make it a valid and enforceable contract.
Though husband argues agreement is out of court’s jurisdiction because of religious aspect, courts are able to determine validity of agreement when pith and
substance is not religious.
 Agreement was drafted by parties and their lawyers and was intended to have legal effect.
 * While the obligation was moral rather than civil, the contract made the obligation valid and binding (transformed from moral to civil obligation).
Husband argues that enforcement would be contrary to public order by violating his
Charter rights. Court finds that the agreement to grant the get as consistent with, not contrary to, public order.
Issue #2 - Charter
As contract is valid, the only thing that will make it unenforceable is if husband’s argument that it violates his freedom of religion stands.
Court finds no prima facie infringement of his religious freedom:
 Refusal to provide the get was not based on religious reasons – he was angry.
 Under Jewish law, no doubt he has the right to refuse the get. But his is not the same as being prevented by a tenet of his religious beliefs from complying with a voluntary civil obligation.
Even if we assume that the agreement infringed upon his s.3 right, it must be

balanced under s.9(1) of Charter against wife’s rights and public interest at large.
 Against public interest to abuse Charter rights in attempt to renege
on civil obligation.
 Goes against Canada’s commitment to equality, religious freedom, and autonomous choice in marriage.
Husband’s refusal to grant wife a get represented an unjustified and severe impairment of her ability to live her life in accordance with Canadian values or her Jewish beliefs.
 **Any infringement on husband’s freedom of religion is “inconsequential” compared to the effect on wife to live her life.
 Husband is free to refuse the get if he is so inclined, but not without accepting responsibility for the consequences to his wife for reneging on his civil obligation.
Holding:
While the obligation was initially a religious / moral one, the contractual agreement between the parties effectively transformed it into a legally valid and binding
one. Husband not entitled to immunity under s.3 of Charter, because any impairment to his religious freedom is significantly outweighed by wife’s rights and public’s interest generally. Appeal allowed.
Dissent (Deschamps J.):
Question of whether civil courts can be used not only as a shield to protect freedom of religion, but as a weapon to sanction a religious undertaking – the answer should be no (the state is neutral where religion is concerned).
 The court has no right to interfere in religious matters – the issue is nonjusticiable. Only permitted to consider question of religious nature than the claim is based on violation of a rule of positive law.
 Amselem set down the subjective standard of sincere belief, so that where religion is concerned, the state should leave it to each individual to make their own choices = so it should do here and leave this issue.
 This agreement was governed by religious law, and the damages she is seeking do not arise from prevention to civil remarriage – but to
Jewish remarriage.
Contract fails under art. 1412 because it does not have a valid object (its object is not a juridical act, is a religious one). Obligation to obtain religious divorce is not legal / has no legal consequences. As such, obligation in question is not civil, but moral– and therefore unenforceable.
There is considerable disagreement as to where to draw the boundaries between religious laws/customs and the CML/CVL in terms of legal issues with religious dimensions.
- Bruker v. Marcovitz shows Abella advocating a more interventionist role for the civil courts, while Deschamps sets out guidelines for determining

In the SCC, M. tried to rely on freedom of religion as a defense to the claim for damages for breach of contract (s.9.1 of the Quebec Charter) as a shield to a private action. when the civil courts should exercise restraint in adjudicating religious matters
1. Was the agreement a binding contract in Quebec Law?
2. Was freedom of religion a valid defense to avoid performance or damages?
Dissenting Reasons: Deschamps J.
Ruled that A) civil court cannot rule on a religious matter such as a get, B) the contract was not valid under CCQ
State neutrality as the underpinning constitutional principle, policy, and goal for the law in her reasons (“state-free zone for religion in Canada”) (3)
- Activities mandated by the beliefs/practices of a religious community are permissible and free from judicial intervention except where they clash with positive law (ex. Criminal law)
- The get in question was interpreted as resting solely on a religious rule, and not on any positive law
The principle of non-intervention was one of the most important bases for the adoption of a subjective standard of sincere belief in Amselem. It was precisely this principle that sought to preclude a court from becoming an “arbiter of religious dogma” (Iacobucci J.) (4)
1. Freedom of religion cannot be a means of forcing another to perform a religious act/pay damages in lieu
2. The claim would require recognition of Jewish legal restrictions on women or on the legitimacy of children born where no get has been obtained
Dangerous precedent of constitutional principles used to adjudicate private religious disputes
Majority Ruling: (Abella J.)
Abella endorsed/applied a religious norm and by so doing, introduced judicial intervention into religious communities
- She transformed the express promise in clause 12 to procure a get into a mutual obligation to remove barriers to remarriage; she secularized an explicitly religious obligation
- She reformulated the clause to fit the CCQ rather than analyzing whether or not it complied
Abella applied the subjective sincerity test from Amselem to find that Marcovitz was denying the get not because of his religious beliefs, but because of anger
- the possibility of anger and religious grounds wasn’t considered
- Even if they were religious grounds, M.’s Freedom of Religion would be
outweighed by other factors as set out in s.9.1 of the Quebec Charter
(democratic values, public order, B.’s dignity, general well being of citizens of
Quebec)
- The infringement on M.’s Freedom of Religion was inconsequential compared to the impairment of B.’s ability to live her life in accordance with
Canada’s values/her Jewish beliefs (6)
Discussion:

The majority decision shows a judicial willingness to intervene on whatever grounds a court deems appropriate from case to case
- * By awarding damages on the basis of public policy, Abella is telling
Jewish husbands that they must procure a get or pay damages in the alternative, so is suggesting to the Beth Din that it should grant gets even without the husband’s voluntary consent
By dealing with M.’s argument, the SCC conceded that Charter arguments can be used in private religious disputes (no Charter-free zones in Canada)
Bruker v. Markovitz shows how the subjective sincerity test can be used for equally subjective assessments of a party’s insincerity = finding M. insincere
- This was the first case of doubting a person’s religious sincerity
- Future claims will be easier to reject
“Bruker confirms that Amselem was the logical end of a trajectory that began with
Big M, where the emphasis on protecting the individual believer against a powerful state has been transformed into an emphasis on the state in its judicial disguise choosing one party in a private dispute where conflicting religious positions are asserted (9)”
- Signals the end of religious autonomy (if it ever existed…)
Trial Court: the pith and substance is not religious, it is contractual; the civil court can rule on it
Appeal: The substance of the Marcovitz’s obligation to grant the get was religious, irrespective of the form in which the obligation is stated; the civil court can’t rule on it
SCC: The contract was legally enforceable; damages awarded to Bruker and Trial upheld
Abella:
- a contract dealing with a religious matter is enforceable, provided its object is not prohibited by law or contrary to public order
- the contract for the get was voluntarily made and its interpretation did not require the court to consider contested religious doctrine
Deschamps J. Dissenting:
- M.’s promise wasn’t binding because its object was exclusively religious, which is not justiciable
Abella’s reasoning didn’t just depend on the free intent of the parties, it held that public policy supported the removal of barriers to religious divorce/remarriage as well as gender equality and freedom of choice in marriage
- a husband cannot use his consent power as a bargaining lever to extort concessions from his spouse (40)
- Implicit in this judgment is the belief that religious community members may sometimes need legal protection from the rules/practices of their community
The Legal Enforcement of Religious Contracts:
1. Was M.’s promise to give the get a binding K under Quebec Law?

2. If the promise was binding, can M. rely on freedom of religion to avoid the consequences of his breach?
- Abella: A contract can have a religious object provided that object is not prohibited by law or contrary to public order
- Deschamps: a legally binding contract may be motivated by religious interests if it meets the requirements for a civil contract under prov legislation
- however she found this contract lacking a justiciable object (a religious divorce has no civil consequences, and is not recognized in civil law)
The courts tend to shy away from enforcing agreements based on religious norms/matters
- A) risks drawing the court into a religious understanding debate (41)
- B) legal enforcement may be inappropriate given the subject matter/relationship between the parties (spiritual connection, etc.)
- C) agreements between religious community members may be tainted by undue influence or unfair pressure (from the spouse or the community)
The debate on truth in religious cases is about ‘spiritual truth’ which makes it difficult for the courts
- Deschamps: because religious values/beliefs are inaccessible to nonbelievers, they lie outside the scope of reasonable public debate and
cannot provide a publicly acceptable basis for law-making (43)
- Abella: (more pragmatic) the religious character of M.’s undertaking did not immunize it from judicial scrutiny. Courts can’t intervene in doctrinal/spiritual matters, but they can when civil/property rights are engaged
- the K was enforceable without the court having to delve into religious doctrine; M.’s promise was clear and unambiguous
But is this really possible? In every religious case the court is forced, to some extent, into the interpretation of religious practice/doctrine (47)
The State’s Role in Remedying Religion:
The Divorce Act gives judges discretionary power of ‘exerting pressure’ on a spouse who refuses to grant a divorce
- this supported Abella’s public policy motive
- Does Abella’s decision vilify jewish divorce practices as unjust/oppressive?
- Abella says it doesn’t. It doesn’t compel him to act in a way that is inconsistent with his religious beliefs (there is nothing in Judaism that says he cannot give the get, so he can, therefore, contractually bind
himself to give one civilly)
The fact that many in the jewish community regard the rule as unfair and have asked the public authorities to step in does not change the fact that the state is fixing/limiting religious rules (53)
- The SCC’s ruling may not even have effect if the Jewish community sees
it as illegitimate, and the husband’s consent as forced
- It is only religious rights that are at issue, not civil ones

- In this case, the purpose of legal intervention was to free religious individuals from the impact of the rules of their religious community, which they continue to identify and associate with identify
An Aside on Waiver of Freedom of Religion:
In Amselem the SCC held that to waive a religious freedom it had to be done explicitly (Iacobucci J.)
- M. waived his religious right by promising to give the get to B. (without any undue pressure, etc.)
- It wasn’t necessary, therefore, to treat the promise as something to be balanced against his freedom of religion
But was the legal obligation based solely on his promise?
- promise to consent was important, but not the only factor
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Minority rights have to the forefront in the 20 th century as a topic of serious political/cultural debate
Pre 1989 minority debate:
- It was seen as a Liberals vs. Communitarians debate (Individualists vs.
Collectivists)
- Liberals: the individual must come before the community (opposed to more minority rights)
- Communitarians: individuals are only parts of a greater whole (pro minority rights)
This way of seeing the problem is limited; most minority groups don’t want to be isolated from the forces of modernity/liberal societies they want to be “full and equal participants in modern liberal societies” (29)
- ex. Québecois don’t want to separate to create an ‘illiberal society’, then want a ‘distinct society’
- there are some ethno-religious societies that distance themselves: Amish,
Hasidic Jews, Hutterites, etc. (but they are a minority)
So minority debates aren’t usually debates between liberals and communitarians, they’re between liberals about the meaning of liberalism (30)
- Minorities argue that recognition of at least some of their cultural tenets is proper (ex. Language, practices, etc.)
What is the scope for minority rights within liberal theory?
Why aren’t they satisfied with the traditional rights of citizenship?

- There are compelling interests related to culture/identity which are fully consistent with liberal principles of freedom and equality, and which justify granting special rights to minorities = ‘liberal-culturalist’ position
- Dilemma of ‘bad’ vs. ‘good’ minority rights (rights that would undermine, rather than support individual autonomy)
Two types of Minority Rights:
1. Internal Restrictions: The right of a group against its members to protect from destabilization (decision of individual members to not follow traditional practices/customs)
2. External Protections: The right of a group against larger society to protect from external pressures
Minority rights are consistent with liberal culturalism if they protect the freedom of individuals within the group, and promote relations of equality between groups (32)
Minority rights as a response to nation-building?
Assumption is that liberal states treat culture in the same way as religion: do it at home, but it’s of no concern to the state
- Civic Nation: neutral with respect to the ethnocultural identities of their citizens
Ethnic Nation: reproduction of a particular ethnonational culture/identity is one of the most important goals
The state often has policies that promote integration into “societal culture” indirectly (certain jobs have certain qualifications, etc.)
“Nation building provides a more accurate account of modern liberal-democratic states” (36) (involves promoting certain values, languages, cultures over others)
- does this process create injustice for minorities?
- Options for minorities: A) Integration, B) Competing nation-building, C) perma-marginalization
Official Languages
Example 1: National Minorities (most choose option B)
- Quebec: chose option B
- Aboriginal peoples: chose option B
Example 2: Immigrants (most choose option A) (40)
- Since immigrants can’t take part in their own nation-building, the state must lower integration costs for them (mother-tongue services, etc.)
- examination of societal norms is necessary to pinpoint areas of biased (in dress-codes, weight restrictions, public holidays, etc.)
What about the ‘in-between’ cases? Not quite a national minority or an immigrant?
A new front in the multiculturalism wars?
Minority rights are not unfair privileges, they are compensation for unfair disadvantage (43)
- difference-blind rules/institutions are NOT inherently just
- they can cause disadvantages for minority groups
Justice in Context:
- the justice of multicultural demands must be analyzed on a case-by-case basis (ex. Debate over affirmative action in North America)

The immigrant situation today:
There has been a shift since this article was published against multiculturalism
There has been no backlash against national minority multiculturalism, only against immigrant group multiculturalism
Illegal migrants:
- quickly turn citizens against immigration, even in multicultural societies like Canada
Risks to public policy:
- especially when their cultures are perceived as having offensive practices
(Muslims are the stereotypical example)
Economic contributors vs. burdens:
- There will be little support for immigrants who will become state burdens
- Not as much of a problem where immigrants are chosen based on their educational backgrounds (like in Canada)
The future of multiculturalism depends on whether citizens can be convinced that the benefits are worth the risks (59)
1. Identity politics began as a project for neutrality in the public sphere
2.In the 1990’s, it changed to a multicultural point of view; providing opportunity to the less fortunate and recognizing their social disadvantages (ex. Affirmative action)
Politics of positional difference:
- Justice concerning structural inequality
- A group’s position in society is locked on the societal hierarchy
- sometimes based on perceived cultural differences
Politics of cultural difference:
- A group’s cultural norms are suppressed by the majority
Politics of Positional Difference
Positions people on a social hierarchy of privilege and disadvantage
Equality processes that are blind to this social hierarchy cannot hope to undermine the locking of groups on this ‘ladder’
- they must take into account the unique disadvantages of each group
- There is already an imbalance on the scales, and to level it out, minority groups must be privileged in certain ways to ease the balancing
- it is necessary to compensate for disadvantage (64)
A ‘merit’ principle is suggested by Brian Barry who attacks politics of
difference:
- There shouldn’t be any awards based explicitly on class/race/gender
- Instead all who wish should have the opportunity to compete for the same advantages
- But this automatically puts immigrant groups at the same disadvantage as before (circular argument)
- Not just minority inequality, but disabled persons as well and racial
These types of inequality cannot be balanced by ‘neutral’ policies; they can only be resolved by compensatory policies

The Politics of Cultural Difference
Refers to Kymlicka’s work
The societal culture to which each person identifies/relates
Given that a political society consists of more than one societal culture, what does justice require in the way of their mutual accommodation to one another’s practices/forms of cultural expression, and to what
extent can/should a liberal society give these diversities recognition?
(76)
The question of religious difference is added to this
Must challenge the singularity of the self-conception of the nation state (78)
- The benefits of intra-cultural influence must be recognized/promoted
Critical limits to the politics of cultural difference
Cultural difference often focuses too exclusively on specific debates
- ex. Religious, gender, race, sexuality
- in particular, the paradigm of cultural difference obscures racism as a specific form of structural injustice
What will the state support/forbid in the politics of cultural difference scenario?
Normalizing Culture:
- Different cultural values in a given state are seen with a view at ‘tolerating’ rather than ‘integrating’
- often gender issues serve as the test of the limits of toleration (ex. Arranged marriages, hijab, genital mutilation, etc.)
The author finds that focus on cultural difference rather than positional difference lamentable (88)
- limits groups of concern to ethnic, national, and religious groups
Western democracies have recently made new efforts towards intercultural harmonization
- realization that sometimes equality requires differential treatment
- absent relaxations of the rules, many people would be put at an unfair disadvantage (ex. Pregnant women v. dress codes, diabetic children v. no syringes in classroom, etc.)
- The same should apply for cultural groups; it asks not that a law be abrogated, but only that its discriminatory effects be mitigated in respect of certain individuals
Absolute rigour in the application of legislation does not always guarantee fairness
(879)
It is possible for treatment to be differential without being preferential
- Ex. of Multani is given
Facts:
N.S. was called by the Crown as a witness at the preliminary inquiry in a sexual

assault case. N.S. is a Muslim who, for religious reasons, wished to testify while wearing her niqab. The preliminary inquiry judge concluded that N.S.'s religious belief was "not that strong" and ordered her to remove her niqab. The Ontario Court of Appeal held that if the witness's freedom of religion and the accused's fair trial interests were both engaged and could not be reconciled, the witness may be ordered to remove the niqab depending on the context. The Court of Appeal returned the matter to the preliminary inquiry judge, and N.S. appealed.
Issue:
When, if ever, can a witness who wears a niqab for religious reasons be required to remove it while testifying?
Reasoning: (McLachlin C.J.)
An extreme approach always requiring the removal or not is untenable
- the answer lies in a just and proportionate balance between freedom of religion and trial fairness (competing Charter rights)
A witness who for sincere religious reasons wishes to wear a niqab while testifying in a criminal proceeding will be required to remove it if:
A) This is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
B) The salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so
Applying this framework involves answering four questions:
1. Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
3. If both freedom of religion and trial fairness are engaged, is there a way to accommodate both rights and avoid the conflict between them?
4. If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?
Lebel Concurring:
A defence that is unduly and improperly constrained might impact on the determination of the guilt or innocence of the accused
- A clear rule that niqabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication
Abella dissenting:
The deleterious effects of requiring a witness to remove her niqab (possibly prohibiting her from testifying, bringing charges in the first place, or defending herself) far outweigh the salutary effects of being able to see the witness’ whole face
- a stroke, illness, or use of an interpreter affect the way witnesses stand trial more than a niqab does, and yet they are permitted
- this forces the witness to choose between her religious beliefs and her ability to participate in the justice system
Holding:

Appeal denied. The risk to trial fairness outweighs the appellant’s religious freedom.
Social contracts establish law as surely as state’s do
- Common practice was the grounds for law long before the state institutionalized the process
Modern law is associated with power, punishment, hierarchy, and bureaucracy
Indigenous law was created in the social contract context
Napoleon worked a lot on the Delgamuukw case (is teaching at the University of
Victoria)
- Law is societally bound; it is law only within the society that created it
- Law is the intellectual process of deliberating and reasoning to apply rules according to the context (4)
Law from Central
Processes of Enactment
Law from Social
Interaction
Law from the Divine or from Outside Human
Beings
Known as Positive Law
(Legal Positivism)
Law comes from a central authority through a formal process.
(E.g., Canadian
Constitutions, Indian Act, etc.)
Known as Customary Law Known as Natural Law
Law comes from the interaction between human beings that enables people to generally predict behaviours in a group.
(E.g., Resourcemanagement law of decentralized peoples)
Law comes from a divine authority or from basic human characteristics.
etc.)
1
(E.g., Ecclesiastical law,
John Borrows argues that Indigenous societies have at least five sources of law: sacred, deliberative, custom, positive, and natural. (forming the ayook:
Gitskan law)
- In reality aboriginal law involves interaction between these different factors
- The are not “artificially watertight”
How law is structured reflects how society is structured
For Aboriginal societies, and all societies in general, law is a language of interaction
(6) creates social settings where people’s behaviours generally fall within expected/known patterns

- Law still functions as such whether it is centralized or not
- Many aboriginal societies live by law they do not even know exists, because they think that it has to look like Western law
Legitimacy
Laws are by their nature imposed and are non-consensual
- the real key to legitimacy, then, are the means by which contestation is settled
- The destruction of Aboriginal ways of dealing with these conflicts has resulted in the disintegration of aboriginal societies
Where is Indigenous law recorded?
Sometimes in ‘place names’, sometimes in traditions/practices, some in oral histories, some in relationships with one another
- Traditions have to have a useful purpose to be legitimate (ex. Sweetgrass in the school at 11)
Territory– How far Does the Legal Order Go?
Historically, territory was defined as the limits that a tribe could defend
- but now tribes are split up with many living off reserve
- Who does the legal order apply to? How far does it reach? What happens at the edge of the territory with other peoples’ laws?
Power and Gender
Is indigenous law incapable of dealing with complex present-day issues?
Does indigenous law allow its peoples to violate human rights?
- questions about homophobia, sexism, ageism, addictions, etc.
What happens when the claims of minority cultures clash with norms of gender equality that are at least formally endorsed by the state?
Ex. Polygamy
- over 200,000 Fr. families in Paris are polygamous
- women involved viewed it as inescapable/barely tolerable
Because of strain on welfare state, Fr. has decided to only recognize one wife, and the others marriages are annulled
- rash policy
Polygamy constituted what Kymlicka calls a ‘group right’

- the gendered nature of these groups/their rights are often overlooked in favour of “monolithic” view of group rights (3)
- ignores the private sphere, where much of the cultural practices are preserved/transmitted to the young, etc.
- Religion is rife with the subordination of women
In some South-East Asian/Latin American/West African countries, rapists are exonerated if they offer to marry the victim
- so restitution is giving the family back its honour, by relieving it of a daughter who is now “damaged goods”
- Pakistan: these women are pressured to commit suicide or are killed by family members instead for zina sex outside of marriage
Servitude of women is almost synonymous with their ‘traditions’ (6)
‘Cultural defences’ should not be viable in crimes against women
- Whoever is guilty of the infidelity, the women lose
As, Kymlicka argues, there must be a guarantee of internal, as well as external, liberalism for these group rights to be legitimate (9)
From a feminist point of view, minority group rights are by no means a clear solution to the cultural membership problem (10)
- it seems to even exacerbate the issue
- when analyzing group rights, it is important to consider “within-group inequalities” (especially between the sexes)

Criticizes Okin:
 Feminism as oppositional to multiculturalism?
 Minority women as victims of their cultures?
‘Clash of Cultures’
Is feminism really contradictory to multiculturalism?
 Why should women have to choose between culture/rights?
 False dichotomy
Violence against immigrant women is explained as an aspect of culture
 Cultural rather than structural/economic reasons are given for gendered violence
Volpp questions Okin’s statement that feminism and minority cultural values cannot both be achieved together
There must be a more fluid understanding of culture as changeable NOT static
Assumptions of oppression in minority cultures can be traced to:
 Colonialism
 Depictions of the feminist subject
 Limits of liberalism
 Use of false binaries
Ex. of the niqab: assumption that Muslim women are in need of saving by feminists
Ex. presumption that women have a unitary gender identity
 Multiculturalism and feminism should be construed as being oppositional
* Cultural explanations for abuse in minority groups obscures the concept as it applies to the majority
* Brown v. Board of Education, [1954] USSC: big American equality case for civil rights movement
The Andrews Test and the 1995 Equality Trilogy
 Drafting history of s.15 reveals a desire to move beyond the limited understandings of equality found in the common law and under the Bill of Rights.
 Andrews (1989) o Because of 3 year delay in implementation, not until 1989 that SCC decided its first case in interpreting and applying s.15. o Three part test requiring:
 A distinction in treatment
 That results in the imposition of a burden or denial of a benefit
 On the basis of an expressly prohibited ground or one analogous thereto.
 Law v. Canada (1999) o SCC reformulated Andrews test

o Burdensome differences in treatment on the basis of prohibited grounds are discriminatory only if they can be said to violate the human dignity of the claimant.
 R v. Kapp (2008)
Repudiated focus on human dignity from Law v. Canada and reverted to a version of the approach adopted in Andrews.
Facts:
Andrews is a British subject and permanent resident of Canada. He is bringing action for declaration that the Canadian citizenship requirement for admission to the Law Society of British Columbia violates s.15. Andrews is otherwise qualified to practice law in the province.
Issue:
Does the citizenship requirement for entry into the legal profession violate s.15?
Legal Reasoning (McIntyre J):
The Concept of Equality
 s.15(1) is not a general guarantee of equality. It is concerned with the application of law. o No question of scope of “law” arises here because it is an Act of the legislature under attack.
 “Equality” lacks a precise definition o It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in society. o Recognize that every difference in treatment between individuals under the law will not necessarily result in inequality, and that identical
treatment may frequently produce serious inequality.
 Big M = “The interests of true equality may well require differentiation in treatment.”
 The admittedly unattainable idea should be that a law expressed to bind all should not, because of irrelevant personal differences, have a more burdensome or less beneficial impact on one than another. o Problem with this test = excludes any consideration of the nature of the law.
 The “similarly situated” test cannot be accepted as a fixed rule  Consideration must be given to the content of the law, its purpose, and its impact upon those to whom it applies and also upon those whom it excludes.
 For the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions. o What kind of distinctions will be acceptable under s.15 and what kinds will violate it?
 Clear purpose of s.15 is to ensure equality in the formulation and application of the law. o Much more specific goal than mere elimination of distinctions. o The fact that identical treatment often produces serious inequality

is explicitly recognized by s.15(2).
Discrimination
 The worst oppression will result from discriminatory measures having the force of law – it is against this evil that s.15 provides a guarantee.
 Discrimination = “A distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to others.” o No intent required as an element of discrimination, for it is the impact of the discriminatory practice upon the person affected which is decisive. o Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
Interpretation of s.15
 Three approaches have been adopted with respect to s.15 interpretation: o 1. Treat every distinction made by the law as discriminatory and thus justifiable only pursuant to s.1. o 2. Define discrimination as unfair or unreasonable differences in treatment. o 3. s.15 is limited to prohibiting differences on the basis of prohibited grounds.
 [McIntyre chose approach #3 (the first two effectively denied the role of s.15 and s.1 respectively).]
 However, not enough to only focus on alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. o Must look at the effect of the distinction or classification. o Any consideration of factors which could justify discrimination and support the constitutionality of impugned legislation would take place under s.1.
Applied to facts of this case:
 1. It is apparent that a legislative distinction was made by s.42 of Barristers and
Solicitors Act between citizens and non-citizens with respect to the practice of law. o 2. Distinction would deny admission to the practice of law to noncitizens who in all other respects are qualified. o 3. Distinction thus imposes a burden in the form of some delay on
permanent residents who have acquired all or some of their legal training abroad and is, therefore, discriminatory.
 The rights guaranteed in s.15 apply to all persons whether citizens or not.

o Non-citizens are in fact perfect example of the kind of “discrete and insular minority” that the Charter is designed to protect.
 Non-citizens fall into an analogous category to those specifically enumerated
(immutable and beyond the control of the individual).
 * A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of lack of citizenship, infringe on s.15.
Disagreement over the Application of s.1
 While the judges agreed on the approach to s.15 they split sharply on the appropriate role of s.1 in equality cases: o McIntyre (dissenting) = Favored relaxing Oakes test because “pressing and substantial objective” requirement was too stringent in context of equality claims. o Wilson = Oakes test remains appropriate standard once it is recognized that not every distinction between individuals and groups will violate s.15.
 McIntyre (dissent) = Willing to uphold violations on equality rights if government is pursuing sound objectives in a reasonable manner. Here, found that it was a reasonable means of ensuring lawyers were qualified.
 Wilson and LaForest (majority) = Citizenship requirement is not closely tailored to the objective of ensuring that candidates for admission to the bar had a sufficient understanding of and commitment to, Canadian
institutions.
Holding:
Yes. A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of lack of citizenship, unjustifiably infringes on s.15.
* Andrews Test:
 A distinction drawn on an enumerated or analogous ground
 Resulting in disadvantage
 That is discriminatory (1241) o In purpose or effect (1240)
Notes:
 Though it was the SCC’s first decision to grapple with s.15 of the Charter,
Andrews ruling established a number of principles that continue to frame s.15 interpretation: o Equality cannot be reduced to sameness of treatment. o Rejection of “similarly situated test” or the notion of “formal equality” o The actual effects of a challenged law or practice should be the focus of the analysis. It is not necessary to establish intentional
discrimination.

o Claimant must establish differential treatment that amounts to discrimination on the basis of a personal characteristic that is either listed as an enumerated ground or that is analogous to one. o A personal characteristic will be accepted as an analogous ground if it shares the essential features of the enumerated personal characteristics.
Especially:
 Immutable and beyond the control of the person
 Groups lacking in political power
 Some insist that courts cannot avoid a “similarly situated” analysis since equality is an inherently comparative concept. Therefore, courts will inevitably have to decide whether there are differences between two groups that justifies differential treatment.
 The Andrews ruling limited s.15’s role to combatting discrimination based on listed or analogous grounds of discrimination. As a result, Andrews had the effect of closing the doors to many potential challenges.
 The divisions on the Court regarding s.1 in Andrews have not disappeared. o Some majority decisions have relaxed the burden of justification on the government by s.1 (similar to McIntyre J’s dissent). o Lavoie v. Canada (2002) = 5 to 4 majority favored a strict approach to government’s burden of justifying violations of equality rights under s.1.
 A notable absence from opinions in Andrews was the failure to articulate the purpose of equality rights in accordance with the “purposive approach” outlined in Big M. o R v. Turpin (Wilson J) = Purpose of s.15 is to remedy or prevent
“discrimination against groups suffering social, political and legal disadvantage” in society.
 Concern that this view of the purpose of s.15 precludes claims by men, who are not historically “disadvantaged” in society.
 R v. Hess; R v. Nguyen = Rejected one of the implications of Turpin - that membership in a disadvantaged group might be a precondition to bringing an s.15 claim. o McLachlin = One need not be a member of a disadvantaged group to suffer discrimination. o Suggested that key question from equality perspective is whether laws taking into account biological differences have done so in a manner that ameliorates or exacerbates group-based difference.
In applying the new constitutional equality rights of the Charter after 1982, courts emphasized the importance of substantive equality through a purposive and contextual interpretive method
- This method encountered problems because of its indeterminacy and unpredictability
Constitutional Change: From Formal to Substantive Equality

The first s.15 case was Andrews v. Law Society of British Columbia,
- Rejected ‘formal equality’ (sameness of treatment definition of equality)
- Also rejects ‘similarly situated’ formula
- Opted for substantive equality (focusing on the effects and outcomes of laws and social policies)
The framework for the doctrinal test was set down in Law v. Canada (Minister of
Employment and Immigration), [1999] required that:
1. The law or policy result in differential treatment or effects
2. Be based on enumerated/analogous grounds of discrimination
3. Constitute discrimination in the ‘substantive sense’ measured in relation to the purposes to be advanced by the protection of constitutional equality
The logic of substantive equality is deeply challenged when members of historically privileged groups allege discrimination (ex. White men) (41)
- Requires examining a particular law/policy within its larger social and historical context
- Human dignity emerged as being intimately linked with substantive equality
In Law, the court set out a list of contextual factors for discerning whether discrimination has occurred:
1. Pre-existing disadvantage/stereotyping/vulnerability, etc.
2. Correspondence, or lack of, between the grounds upon which the claim is based and the actual needs/circumstances of the claimant and others
3. The ameliorative purpose of the impugned law upon a more disadvantaged person/group in society
4. The nature/scope of the interest affected by the impugned law
* Aimed at assisting judges in deciding when differential treatment is discriminatory and when they are consistent with equality
- The importance of historical disadvantage is clear throughout the
Court’s decisions (43)
Equality as a Comparative Concept
* In Andrews, McIntyre noted that equality is a comparative concept that can only be understood by comparison with the condition of others in the society
However, this hasn’t been successfully applied in all cases (45)
- Which comparator group do you go with when there are conflicting choices? (ex. Cases involving: pregnant vs. non-pregnant women discrimination, autistic vs. non-autistic)
- See a narrowing in the analysis
Constitutional Recognition of Groups
Became a hot-ticket issue with gay men/women, disabled people, feminist advocates, linguistic groups, and racialized communities rejecting assimilation (47)
- Push for affirmation of group based differences
How do you deal with people who represent multiple groups? Conflicts between different socially disadvantaged groups? Who has the legitimacy to represent the groups?
How do we resist law’s tendency to frame group rights in fixed categorical ways that undermine more dynamic conceptions of identity (‘Essentialism’) (50)

- Group-based claims are historicized, and made in relation to specific institutional, structural, cultural, and social networks created around them
- Challenge is to articulate legal recognition of group-based identities while acknowledging diversity within groups (51)
Shifting Conceptions of the Role of the State: Implications for Equality
How implicated should the state be?
Classical Liberalism/Formal Equality:
- Equality of opportunity?
- Equality as an individual right?
- Equality of treatment?
Social Welfare State/Substantive Equality:
- Equality as a group right?
- Equality of outcomes?
- Recognition of systemic discrimination?
- Preventive/systemic remedial approaches regulated by state (ex.
Affirmative Action) (52)
Neo-Liberal Influences:
- Resurgence on individualism
- Privatization of responsibility for individual well-being (dismantling the welfare-state)
Courts have embraced substantive equality since Andrews, but continuing discomfort with the Courts in acknowledging positive economic/social rights (53)
- Seen as problem better left to the legislator
- Different interpretations of s.15(1) are deeply connected to understandings of the role/responsibilities of government (56)
New Forms of Governance
A new form of Governance?
- Third Way Governance: Equality as Inclusion (58)
- Accords an important role to the state while emphasizing the need to act in partnership with communities to reinvigorate democracy and individual and community well-being (break out of patterns of exclusion/marginalization)
- Investment in ‘active/useful society’ rather than in ‘protection’ (58)
The boundaries of the state’s operational space are being redrawn (59)
Inclusive Processes and Constitutional Equality
Inclusive Equality:
- The unpredictability and uncertainty of substantive equality mustn’t lead back to a formalistic interpretation. Instead, it must be clarified based upon a comprehensive enumeration of the concrete harms of discrimination facing diverse groups, as well as an assessment of the structural, systemic processes that result in the reproduction of
inequality (61)
Emphasize the integral connection between process and substance
1. Assessment of the concrete harms resulting from the discrimination
2. Examination of the degree or extent of the harm
3. Assessment of any exclusionary processes and structural/systemic dimensions of the harm (63)

Canadian Charter of Rights and Freedoms
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Facts:
Nancy Law was 30 when her husband died. She was denied survivor’s benefits under the Canada Pension Plan (CPP) because she was younger than 35 (and was not disabled or have dependent children). She appealed arguing that age distinctions in the CPP discriminated against her on the basis of age contrary to s.
15(1) of Charter.
Issue:
Does the minimum age requirement in the CCP discriminate on the basis of age, contrary to s.15 of the Constitution? If so, is it justified?
Legal Reasoning (Iacobucci J): a) Approach to Section 15(1)
 It is important to interpret s. 15(1) purposively and contextually rather than as a rigid test.
 Andrews = Three elements to discrimination claim: o 1. Differential treatment (in purpose or effect) o 2. Differential treatment is based on enumerated or analogous grounds o 3. Differential treatment has discriminatory purpose or effect
 Prejudice, stereotyping, and disadvantage
 Court should make three broad enquiries: o 1) Does the impugned law
 a) Draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or
 b) Fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment?
 If yes = differential treatment o 2) Was the claimant subject to differential treatment on the basis of one

or more of the enumerated and analogous grounds? o 3) Does the differential treatment discriminate in a substantive sense, bringing into play purposes of s. 15(1) in remedying such ills as prejudice, stereotyping, historical disadvantage, etc.? b) The Purpose of Section 15(1)
 Purposive approach  For finding of discrimination, impugned law must conflict with the purpose of s. 15(1).
 Purpose of s. 15(1) = “to prevent the violation of essential human dignity
and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.”
 What will violate the purposes of s.15(1)? o Legislation which effects differential treatment between individuals or groups o Differential treatment that reflects group stereotypes or rests on immaterial personal characteristics.
 What will not violate the purposes of s.15(1)? o Differential treatment which does not violate human dignity or freedom of a person or group in the ways suggested above. o Where differential treatment assists in ameliorating the position of the disadvantaged in society.
 Human Dignity: o Feeling of self-respect, self-worth and empowerment
 Concerned with physical and psychological integrity o Harmed when individuals are marginalized, ignored, or devalued or subjected to unfair treatment. o Enhanced when laws recognize full place of individuals and groups in society. o Within meaning of equality guarantee in s.15  Concerns manner in which a person or group legitimately feels when confronted with a particular law. c) The Comparative Approach
 Andrews = Equality guarantee is an inherently comparative concept.
 Must consider a variety of factors: o Subject-matter of the legislation (also its purpose and effect). o Biological, historical, and sociological similarities or dissimilarities can also establish relevant comparator group.
 Natural starting point = claimant’s view: o Claimant generally chooses group he or she wishes to be compared to for the purpose of the discrimination inquiry. o Court has the power to refine the comparison.

d) Establishing Discrimination in a Purposive Sense: Contextual Factors
1) Appropriate Perspective
 Look at effect of legislation on dignity from claimant’s perspective: o Subjective = Right to equal treatment is an individual right asserted by specific claimant with particular traits and circumstances. o Objective = Can only determine whether individual claimant’s equality rights have been infringed by looking at larger context of legislation and society’s treatment of claimant in the past
 Would reasonable person in circumstances find differential treatment to demean human dignity?
2) Contextual Factors  4 Factors showing legislation has the effect of demeaning
dignity a) Pre-existing Disadvantage
 Vulnerability or prejudice experienced by individual or group
 Stereotyping o Misconception whereby a person or group is unfairly portrayed as possessing undesirable traits or traits which group do not possess o Biggest reason a provision could be found to infringe s. 15(1) is that it reflects and reinforces existing inaccurate understandings of merits, capabilities and worth of a particular person or group.
 Any demonstration by claimant that legislative provision or state action has the effect of promoting view that individual is less capable = infringement of s.
15(1). o Not necessary to show disadvantage to establish s. 15(1) violation. o Not necessary to show membership of sociologically recognized group. b) Relationship Between Grounds and the Claimant’s Characteristics or
Circumstances
 Must be correspondence between the ground upon which the claim is based and the nature of the differential treatment. o Example of different “grounds” = age, race, sex
 Will be harder to prove discrimination when legislation differentiates while taking into account the actual needs, capacity, or circumstances of a particular group.
c) Ameliorative Purpose or Effects
 If the purpose of the impugned legislation accords with the purpose of s.15(1), it will likely not be found to violate the human dignity of other (more advantaged) individuals or groups.
 If claim of discrimination is brought against laws aimed at ameliorating position of more disadvantaged group  Court might consider justification

under s. 1 or s. 15(2) d) Nature of the Interest Affected
 Look at nature and scope of the interest affected by the legislation o Economic o Constitutional and societal significance
 Also consider whether it restricts access to fundamental social institution or affects basic aspect of full membership in Canadian society.
* Iacobucci  Nature and extent of claimant’s burden under s. 15(1):
 Data or social science evidence may help establish violation but, it is not necessary. Court may simply take “judicial notice.”
 Does not need to prove intent to discriminate (unlike USA)
 Requirement of substantive rather than merely formal inequality
e) Summary of Guidelines (see CB pp. 1260-3) f) Application to the Case at Bar
 Impugned provisions of CPP draw distinction on basis of age (enumerated
ground)  results in unequal treatment in form of either a delay or reduction in benefits.
 Rejected government’s argument that because impugned provisions depend upon interplay of three factors (age, disability, dependent children), legislation could not be said to draw a distinction based on age.
 Third stage of s.15 analysis = Does differential treatment of widows in L’s situation amount to discrimination?
Discrimination:
 Central issue  Do age distinctions drawn by CPP impose a disadvantage upon the appellant in a manner which constitutes discrimination under s. 15(1) of Charter? o Law’s claim = distinction made solely on basis of age (under age of 45) o Hard to argue that it violates her human dignity since people under age of 45 have not been normally subjected to discrimination in the past.
 Appellant argues impugned CPP provisions infringe s. 15(1) of Charter in both their purpose and their effect. o Purpose of law = provide benefits to surviving spouses most in need based on assumed correlation between increased age and one’s ability to enter the workforce following death of spouse.
 Law argues young people have difficulty obtaining employment also
 No link between age at time of spouse’s death and need for benefits o Effect of law = demeans dignity of adults under 45 and treats them as

being less worthy than other adults by stereotyping them as being less in need.
 Government argues these assumptions are based on statistical data
 Concerned not only immediate financial needs of surviving spouses but also long-term financial needs.
 Dignity-related questions: o Do the impugned CPP provisions in purpose or effect violate essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice? o Does the law, in purpose or effect, conform to a society in which all persons enjoy equal recognition? o Does the law, in purpose or effect, perpetuate the view that people under 45 are less capable or less worthy of recognition in society?
 * Appellant did not show in purpose or effect that legislative provisions violate her human dignity to constitute discrimination.
 Purpose and function of CPP  Not to remedy immediate financial need experienced by widows but rather enable older widows to meet basic needs in long term. o Increasing difficulty to find employment as one grows older
 Look at contemporary and historical context o Legislation does not stereotype, exclude or devalue adults under
45 o Older surviving spouses more economically vulnerable longterm
 Ameliorative purpose of the pension scheme for older surviving spouses o Supports view that impugned provisions do not violate essential human dignity o L is more advantaged in relative sense so difficult to see how legislation is violation of her dignity. o People in L’s position are not completely excluded from
obtaining pension although it is delayed until 65 (unless they become disabled).
 ** Law does not violate L’s human dignity  CPP is not discriminatory. o One of rare cases in which differential treatment based on one or more enumerated or analogous grounds in s. 15(1) was found not to be discriminatory. o Identify such cases through purposive analysis of s. 15(1)  ensure that does not become mechanistic but addresses the true social, political, and legal context underlying every equality claim.
* No violation of s. 15(1) of the Charter  not necessary to move to s. 1
Holding:
No.
 Law significantly modified the s. 15 test

o Old approach = Claimant establishes a violation of s. 15 if he proves
“differential and disadvantageous treatment based on prohibited ground of discrimination.” o Law approach = Such treatment is discriminatory only if the claimant can
also establish that it implicates his or her human dignity in terms of the four contextual factors outlined by the Court.
 Criticisms of “human dignity standard” in Law: o Too vague and malleable o Imports into s. 15 analysis a balancing of individual rights and social objectives that should take place in s. 1.
There are no fixed or easy formulas to the definition of equality
I. The Tension between Formal/Substantive Understandings of Equality s.15 does not establish a general guarantee of legal equality that can be used to challenge any legal differences in treatment (105)
- Discrimination can be either intentional or inadvertent
Formal Equality:
- Ensuring that laws don’t impose disadvantages on people by treating them according to false stereotypes associated with irrelevant personal characteristics
- Similarly Situated test measures means-end rationality and is the most familiar expression of formal equality
Substantive Equality:
- Ensures that laws don’t impose subordinating treatment on groups already suffering social/political/economic disadvantage
- Focus is on the group/ the impact of the law on its social/econom./polit. conditions
* Both play a role in the jurisprudence (106) s.15 has two purposes:
1. Ensuring laws avoid treating individuals according to stereotypes
2. Ensuring that laws avoid further subordination of already disadvantaged groups
Formal equality is incomplete on its own, but works well when balanced by substantive equality
What about when they’re not both aligned?
- Substantive equality trumps; see Law (108)
- Ex. Affirmative action programs
II. Critical Assessments of the Supreme Court’s Section 15 Decisions
Andrews was well received, but Law was not
- mostly revolves around the ‘human dignity’ principle being too vague and abstract
- Most authors prefer the more simple/predictable test established in
Andrews

- The scope of s.15 is being unjustly restricted by the importance given to relevance in the human dignity analysis (110)
- The other side of the critics argues that the SCC is giving too much leeway to equality-seeking groups and is eclipsing the rest of the Charter
III. Success Rates of Section 15 Claims
Average success rate of s.15 claims at the SCC is 27.9%; significantly lower than average success rate of all Charter claims before the Court
- Even lower at the lower court levels
Success/Failure are subjective definitions, however
Increase in s.15 claim success after Law
Has Law shifted the burden of analysis from s.1 to the human dignity stage of the s.15 test? (117)
- The s.15 cases that the SCC gives leave are more likely to be well-presented and well-funded involving, more likely to turn on the Court’s conclusion at the human dignity stage
IV. The Supreme Court’s Application of the Four Contextual Factors in Law
1. * Historic disadvantage
2. Lack of correspondence between the ground of discrimination at issue and the actual needs, capacities, etc. of claimant
3. Absence of purpose/affect that ameliorates condition of another more disadvantage group
4. Importance of the interest interfered with by the state
[#1 is the most compelling]
#2 has been criticized as recreating the ‘similarly situated’ test (119)
- Asks whether claimant is similarly situated to those receiving different treatment, measured by reference to differences that are relevant to the state’s objectives (has been a deciding factor in s.15 decisions)
* The Four Factors attempt to mediate between Formal/Substantive Equality
V. Revisiting the Law Test
SCC has approached s.15 adjudication very cautiously so as not to overextend its breadth and depth of application (125)
Despite its successful application when Formal/Substantive equality meet, the
Law analysis also has the capacity to forgive state policies that impose subordinating differential treatment on disadvantaged groups, so long as those policies have a rational basis
- The government must be held to a higher standard
- * Govs should have to demonstrate rational means of pursuing a compelling objective as well as an exhaustion of all less burdensome options (127)
[so pretty much a s.1 analysis]
Law
Law
LEAF (Women’s Legal Education and Action Fund)
Law has led away from substantive equality in the SCC reasoning

- Obscures the meaning of equality and creates unnecessary hurdles for s.15 equality claimants
- LEAF has been advocating for a new test to replace Law
- Law has narrowed the judicial scope of equality, made it much more difficult to advance successful equality rights claims
Law three step test:
1. Differential treatment?
2. Differential treatment based on an enumerated ground?
3. Differential treatment that is discriminatory?
In addition, Iacobucci J. held that the purpose of s.15(1) was to prevent the violation of essential human dignity (#4?)
Four factors to discern human dignity infringement: a) pre-existing disadvantage/stereotyping/prejudice experienced by the individual or group? b) Correspondence, or lack of, between ground on which the claim is based and the actual need/capacity/circumstances of the claimant or others? c) Does legislation in question have ameliorative purpose for a group that has been historically disadvantages? d) What is the nature of the interests affected by the legislation?
(list of factors to find violation of human dignity not closed; no specific formula to be applied for violation of human dignity)
The Law guidelines have become a Test regularly followed in all s.15 cases (4)
Problems:
Identification of a comparator group for the purposes of #1:
- Court can redefine the comparator group; isn’t bound by claimant’s characterization
- Misidentification by the Court can doom the whole case
Human Dignity Analysis:
- The claimant bears the whole burden of proving under s.15(1) that a distinction is discriminatory, in the sense that it harms her dignity and fails to respect her as a full and equal member of society
- Human dignity is vague/abstract/ambiguous, which makes it very hard to mold the factual/contextual evidence to fulfill the burden necessary
Focus on determining the purpose of the law within s.15 analysis instead of s.1:
- means that entire onus is on claimant rather than on gov to prove justification
- The focus of the Law test is on the legislative intent and the nature of the interest affected by the legislation; human dignity suggests a focus on personal feelings, but the focus on the purpose of the law detracts from its discriminatory effects
- Result is a departure from an effects-based analysis of discrimination claims
Confusion as to contextual equality rights analysis
- The focus on the legislation’s effect on the claimant is lost by the introduction of the competing analysis relating to the purpose of the legislation

- Shifts focus away from the effect of the distinction on the claimant as a member of a disadvantaged group, to a focus on the purpose of the
legislation (which is almost always positive)
- The confusion about the meaning of a contextual analysis works to the disadvantage of claimants (7)
Human dignity brings into s.15 analysis a concept primarily relating to personal injury claims
- Creates need for plaintiff to paint a picture of themselves as damaged/pitiful
- Disadvantages those who survive the experience with self-respect/dignity intact
The Reasonable Person standard disadvantages those outside of the dominant norm
- Distances the decision-maker from the context of the inquiry
- Invokes principles of universality that facour the non-disabled white male
LEAF’s Preferred Equality Rights Analysis
Equality rights law has not progressed much past Formal Equality
- Substantive equality must focus on the unequal effects of systemic disadvantage
Argue that the steps A and D are the big ones and that B/C are ineffective
An effective analysis requires an assessment of differential treatment that incorporates concepts of grounds and discrimination (12)
- A narrow understanding of human dignity risks ignoring significant manifestations of inequality (must be broadened)
For the role of s.15 to be fulfilled, the focus must be on promotion of equality
- Care needs to be taken to not undermine substantive equality with the human dignity analysis
LEAF argues that s.1 test must incorporate equality as a ‘fundamental value of a democratic society’ (12)
Facts:
Under the Aboriginal Communal Fishing Licenses Regulation, an Aboriginal organization can receive a communal license and can authorize individuals to fish under that license. One such license granted members of three aboriginal bands the exclusive right to fish in the Fraser River for a 24 hour period, some of them being licensed commercial fishers. Appellants, who are non-aboriginal commercial fishers, challenge the constitutionality of the fishing license on the basis of s.15.
Issue:
Is this law protected from s. 15(1) by s. 15(2)?
Legal Reasoning (McLachlin CJC and Abella J):
1) The Purpose of S.15
 The court protects “substantive equality,” as contrasted with “formal equality.”

o Equality does not necessarily mean identical treatment and recognizes that the formal “like-treatment” model of discrimination may produce inequality.
 Governments may chose to help disadvantaged groups improve their situation through s. 15(2), which cannot be challenged under s.15(1).
 Andrews = established a test for showing discrimination under s. 15(1).
McIntyre J viewed discriminatory impact through the lens of two concepts: o 1) Perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds (that are not imposed on others) o 2) Stereotyping on the basis of these grounds that results in a decision that does not correspond to claimant’s or group’s actual characteristics
(as in Andrews)
 Law = Court suggested a definition in terms of the impact of the impugned law on “human dignity” of members of the claimant group, considering four contextual factors: o Pre-existing disadvantage o Degree of correspondence between differential treatment and group’s reality o Whether law has ameliorative effect or purpose o Nature of the interest affected
 Problems with the Law test: o “Human dignity” is an abstract and subjective notion that has been difficult to apply and has been an additional burden on equality claimants. o The 4 contextual factors mentioned overlap with the two concepts of discrimination of Andrews.
 So  Factors cited in Law should just be used to help focus on the central concerns of s.15 identified in Andrews = combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping.
 The central purpose of combatting discrimination is seen under both s.15(1) and
(2): o 15(1) = prevents discrimination o 15(2) = enables action to eliminate existing discrimination
2) Section 15(2)
 Andrews requires that discriminatory conduct entail more than different
treatment  Programs designed to ameliorate the disadvantage of one group will inevitably exclude individuals from other groups, but do not constitute discrimination.
 Does the fishing program in this case fall under s. 15(2) = A “law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups?” o The communal fishing license was issued pursuant to an enabling statute and regulation – the ACFLR, which qualifies as a “law program or activity”

under s.15(2).
 In Interpreting s. 15(2), court proposes that if government can demonstrate an impugned program meets criteria of s.15(2), it may be unnecessary to conduct a s.15(1) analysis at all. o Thus, sections 15(1) and 15(2) work together to promote substantive equality through confirmatory purpose (protection against discrimination).
 Once s.15 claimant has shown a distinction made on an enumerated or analogous ground, it is open to the government to show impugned law is ameliorative and thus constitutional. o If government fails to show its program falls under s.15(2), the program must then receive full scrutiny under s.15 (1) to determine whether its impact is discriminatory.
 Formulation of s.15 (2) test (open to future refinement): o 1) The program has an ameliorative or remedial purpose, and o 2) Targets a disadvantaged group identified by enumerated or analogous grounds.
Analysis of s.15(2) focuses around three key phrases  “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups.” a) “Has As Its Object”
 Language of s.15(2) suggests that the legislative goal (purpose) rather than the effect should be considered. o Scholars concerned that a “subjective” (goal-driven) test will permit government to defeat discrimination claim by declaring impugned law has an ameliorative purpose. o Court holds the purpose can be investigated if truly genuine. Also, this will prevent court from unduly interfering in ameliorative programs created by the legislature.
 In examining purpose, court should take into account: o Statements made by drafters o Whether legislature chose means rationally connected to ameliorative purpose
 Very little scrutiny – only requires correlation between the program and disadvantage suffered by the target group
 Ameliorative purpose can still garner s.15(2) protection even if it is not the only object. o s.15 (2) precludes from s.15 (1) review any distinctions made on enumerated or analogous grounds that serve and are necessary to the ameliorative purpose. b) “Amelioration”
 s.15 (2) protects programs that aim to “ameliorate” the condition of

disadvantaged groups identified by the enumerated or analogous grounds.
 Laws designed to punish or restrict behavior would not qualify for s. 15(2) protection. c) “Disadvantaged”
 Connotes vulnerability, prejudice and negative social characterization
 Must target a specific and identifiable disadvantaged group as contrasted with broad societal legislation.
Application of s.15(2) to Present Case:
 Appellants demonstrated that they were denied a benefit (distinction) based on race, an enumerated ground under s. 15.
 Does the government meet the two conditions for protection by s. 15(2)? o Government was pursuing goal of promoting band self-sufficiency, hoping to ameliorate the social economic disadvantage of the targeted bands.
 The means chosen (special fishing privileges) are rationally connected to serving that purpose. o Evidence shows the bands granted the benefit were in fact disadvantaged in terms of income, education and many other measures.
 The fact that some individual members of the bands may not experience personal disadvantage does not negate group disadvantage.
  Government program has as its object the amelioration of conditions of disadvantaged individuals or groups. Therefore, it does not violate the equality guarantee of s.15.
Holding:
Yes.
Review: Putting the s.15(1) and (2) Tests Together
1.
Does the law create a distinction based on an enumerated or analogous ground
(15.2)? a.
Is there a s.15(2) claim? Does the program have an: i.
Ameliorative purpose and ii.
Target a disadvantaged group identified by enumerated or analogous grounds (government onus). b.
If yes, stop here. If no, move on.
2. The s. 15(1) analysis involves 3 steps:
1) Does law create distinction?
2) Is distinction based on enumerated or analogous grounds?
3) Does the distinction create disadvantage by perpetuation prejudice or stereotype (discrimination)?
* All steps structured around comparator group, addressed before the 3 rd step.

1. Court distances itself from the dignity test in law returns to Andrews
2. 15.2 is more than just an interpretive aid to 15.1; certain ameliorative programs can be free from scrutiny
Court needs to qualify the new test with deeper understanding of disadvantage
 Might lead to a too restrictive understanding of disadvantage
 Further contextualization of discrimination/disadvantage in 15.2 is needed
Why should a program escape scrutiny just because one of its purposes is ameliorative?
 Have to look at effects; not enough to base on purpose alone
 What if the program excludes some people? Would they have recourse?
 No opportunity to question whether the program is appropriately inclusive (ex. Ermineskin v. Canada)
Kapp: reverse discrimination argument fails
 Test will have to be modified to make analysis more meaningful
Should s.25 have been considered?
 Court decided it wasn’t necessary after finding the program met 15.2
 Disappointing that s.25 protection of Aboriginal rights wasn’t broached
What significance in Kapp for recognition of group rights?
- Recognition of unequal bargaining power (see Harry v. Kreutziger)
What possible criticisms?
- Ignores minorities within the disadvantaged groups
- 15.2 replacing the s.1 analysis?
- Is the loosening of standards on the gov through the use of s.15.2 instead of s.1 a good thing?
Facts:
The appellants are representatives of two class actions for widows whose federal death benefits were reduced because of the age of their husbands at the time of death. The benefits were reduced, according to statute, by 10% for each year by which the plan member exceeded a prescribed age. Appellants contend those provisions infringe s.15(1) of the Charter, and aren’t justifiable under s.1.
Issues:
Do the benefit regulations violate s.15(1) of the Charter, and if so is the infringement justified under s.1?
Reasoning: (McLachlin and Abella)
Court wants to move away from an analysis based on formal comparison between claimants and a ‘similarly situated’ group: promotes formal, not substantive equality
- Need to take account of the full context of the claimant group’s situation, actual impact of the law on that situation, and whether the impugned law

perpetuates disadvantage to or negative stereotypes about that group s.15(1) Test:
1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuation prejudice or stereotyping?
#1. Plaintiff must establish that she has been denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated/analogous grounds of s.15(1)
- Not necessary to pinpoint a mirror comparator group
- Claimant must only establish distinction on one or more grounds (allows flexibility to accommodate claims based on intersecting grounds)
#2. Does the distinction the law makes between the claimant and others discriminate by perpetuation disadvantage/prejudice to the claimant group, or by stereotyping it?
Application:
1. The reduction provisions are age-related, therefore clearly constituting a distinction on an enumerated ground
2. But the age-based rules are effective in meeting the actual needs of the claimants and in achieving important goals (ensuring meaningful retiree benefits) and do not violate s.15(1)
- Pension benefits are designed to benefit a number of groups in different circumstances/with different interests
- Distinctions on general criteria (like age) had to be made to address the members’ different needs over the course of their working lives
This is a supplementary lump-sum benefit that exists in addition to the other pensions/benefits to which the spouses are entitled
- For younger employees, larger amount acts as safe-guard to protect them until pension kicks in
- For older employees, smaller amount meant to help with last costs of illness/death since pension is already in play
Holding:
The appeal should be dismissed. There was a distinction on an enumerated ground, but it did not pass the second step: does not violate the equality guarantee.

 Establishing a ground is necessary to proving a s.15 breach o Also have to prove that distinction on that ground was discriminatory
 However, recent constitutional cases demonstrate that real limitation on equality claims coming from ‘human dignity’ element
 Grounds remain the focus of discrimination analysis
 Is it appropriate? o What are implications of intersecting grounds? o Proof of discrimination when it’s not based on any formal policy?
 Moving away from an emphasis on grounds might increase rather than decrease the scope of permissible discrimination (bad) o Heureux Dube: focus on grounds is bad for discrimination claims; risks distancing from real people’s experience
 Reduces discrimination to watertight compartments
 Decontextualizing
 Pothier: focus on grounds is good for discrimination claims, as they provide the history and context of discrimination o Grounds should be central o Markers of discrimination; helps to define it
Grounds are necessary to focus public view on real sources of discrimination
 The essence of the critique of grounds is that they are an artificial compartmentalization, which obscures the complex reality of real life.
 In contrast, the defense of grounds is based on the contention that they serve to focus attention on the real sources of discrimination.
Lovelace v. Ontario: [2000]
 Challenged agreement between Ontario gov and Ontario First Nations over the exclusion of non registered Indian bands from profits made through partnership arrangement for an on-reserve casino (profits only for bands registered under the Indian Act only) o Does the exclusion of non-band aboriginal communities violate equality under s.15?
 Grounds analysis skipped by Iacobucci o Distinction was made by Ont gov. between band/non-band o But grounds skipped (cannot compare two Aboriginal groups)
 Under-inclusiveness?
 Found that the circumstances were not indicative of discrimination because the distinction CORRESPONDED to the actual situation
Intersecting Grounds of Discrimination
 A particular ground of discrimination isn’t required to be the sole determinant of discriminatory behavior

 Legal understanding is that grounds are separate and distinct
 Ex. Law: Gender or Age? o Have to pick one o Even though it usually occurs along multiple grounds
(decontextualized from people’s real lives)
 Dominance and subordination: o Under discrimination doctrine you are either the victim or the perpetrator o Binary view unable to take into account relational differences of power/class/race, etc. (shifting hierarchies depending on the context)
* You should be allowed to bring challenge under multiple grounds (sum of the parts)
 Challenging Norms: o Have to challenge norms by challenging the existing status quo
(real substantive equality) o The ‘normal people’ make the rules while others are
‘reasonably accommodated’
HAVE to have a grounds analysis to provide analytically essential contextual investigation
 If you want a contextual analysis it must be based on grounds, which are based on historical roots of disadvantage
Ultimately Pothier argues that any analysis has limitations but grounds of discrimination must not be abandoned because they are analytically essential and provide context, yet have to be approached with nuance.
Kapp 15.2:
 Just because there are some who are disadvantaged doesn’t mean it’s discriminatory
[Link to Kymlicka and Young]
Facts: s.77(1) of the Indian Act required band members to be “ordinarily resident” on their reserve in order to be eligible to vote in band elections. Non-resident band members brought challenge under s.15 alleging that residence was irrelevant and shouldn’t deprive them of a voice in decisions that could deeply affect them.
Issues:
Does s.77(1) of the Indian Act represent an analogous ground on which to base discrimination?
Reasoning: (McLachlin C.J. and Bastarache J.)
Step One:
- Does the law make a distinction that denies equal benefit or imposes unequal burden? YES
Step Two:
- Is the distinction discriminatory?

- Is the distinction made on the basis of an enumerated ground of discrimination or a ground analogous to it? YES
Can the analogous grounds change depending on the case?
NO. A marker of discrimination cannot change from case-to-case
- Enumerated and analogous grounds on only indicators of suspect grounds of distinction. It follows that decisions on these grounds are not always discriminatory, but the categories remain constant
- It is not the ground that varies from case to case but the determination of whether distinction on that ground is discriminatory
After an analogous/enumerated ground is found, proceed to contextual discrimination analysis at the third stage
How to Identify Analogous Grounds?
The 2 nd and 3 rd stages of the test are distinct; affirmative answers to both questions
(2. Analogous grounds 3. Discrimination on the facts) are necessary for establishing a constitutional claim
- Look for grounds that are like the grounds enumerated in s.15
Grounds that often serve as the basis of stereotype-based decisions made on the basis of unchangeable personal characteristics instead of merit
- s.15 targets the denial of equal treatment on immutable grounds
Application to the case
Off-reserve band members can only change their status to on-reserve at great cost, if at all
“Embedded” analogous grounds like this one may be necessary to permit meaningful consideration of intra-group discrimination (inclusiveness)
Concurring: (L’Heureux-Dubé J.)
Finding analogous grounds:
1. From the perspective of a reasonable claimant, is the characteristic important to their identity, personhood, belonging?
2. Is the characteristic immutable, difficult to change, or changeable only a great personal cost?
3. Those defined by the characteristic are lacking in political power/disadvantaged/or vulnerable
4. Whether the ground is covered by federal/provincial human rights codes
* Other criteria may be considered and none of the above are necessary for recognizing a ground or combo of grounds
Application
Decision to live on/off reserve is an important/defining one
Lack of housing/etc. makes it often a forced decision changeable only at great expense
Band members off-reserve have typically experienced disadvantage, etc.
- It meets the criteria of an analogous ground and will be recognized as such forthwith in all cases where the criteria are met
[All members of the Court agreed that the analogous ground discriminated against off-reserve band members for the purposes of step 3]
Holding:

s.77(1) of the Indian Act, having been found to violate s.15(1) of the Charter, cannot be justified under s.1.
* McLachlin: recognition of the analogous ground is determined across all legal contexts
* L’Heureux-Dubé: recognition of the analogous ground should be context-specific
* Immutability (unchanging over time) is the new key to finding analogous grounds

What is the impact of the Charter on these types of social movements
 Critics argue that this depoliticizes and de-radicalizes the movement by
‘legalizing the social politics’ through the Charter o Political question that SCC didn’t have jurisdiction over
 BUT without Charter, the process for equal marriage rights for LGBT people would have been much harder (purely political) o Needs to be political AND legal
I. Big case for sexual orientation as analogous ground of discrimination:
 Egan v. Canada
II. Applying s.15(1) to Specific Forms of Discrimination
 Recognition establishes formal equality, now the challenge is substantive equality
 Using s.15(1) LGBT litigants have been able to use the courts to eliminate/challenge discriminatory distinctions
 However, formal equality is an important symbolic victory (see Bruce
Ryder in Law: have to have formal AND substantive)
Vriend v. Alberta
 Effect, whether intentional or not, of the legislation was discriminatory
Little Sisters Book and Art Emporium v. Canada
 Argued against SCC description of obscene in porn; exemption on basis of difference (same sex); SCC didn’t buy it
Indirect discrimination claims by LGBT individuals
 Similar to those by religious minorities
 Remedy: invalidate the regulation
Equality for Unmarried Same Sex Couples
 Egan o Unanimous in finding sexual orientation as an analogous ground for requirement of gay couples to not pay common law couple spousal support compared to same-sex couples who do after one year, split on s.1 justification (5-4 voted that the limitation was justified, however this changed in M v. H)
 M v. H o 4 years after Egan o Definition of spouse for purposes of support obligations had also to include same sex couples o Marriage equality means paying support after divorce as well
Can the law be a transformational agent?
There have been huge improvements in Canada concerning same-sex rights in the years since the Charter
 While formal equality is not enough, it should not be dismissed; it has tremendous symbolic value

Facts:
Martin government asked four questions to the SCC through s.53 of the Supreme
Court Act having to do with the legality of same sex marriage in Canada, and the
Federal government’s power to legislate in that area.
Issues:
1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for
marriage for civil purposes within the exclusive legislative authority of the
Parliament of Canada? If not, in what particular or particulars, and to what extent?
(YES)
2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter
of Rights and Freedoms? If not, in what particular or particulars, and to what extent?
(YES)
3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian
Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
(YES)
4. Is the opposite ‑ sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law
Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and
Freedoms? If not, in what particular or particulars and to what extent?
(DECLINED)
Reasoning: (SCC as a whole)
Question 1:
Section 1 of the proposed legislation is intra vires Parliament. In pith and substance, s. 1 pertains to the legal capacity for civil marriage and falls within the subject matter of s. 91(26) of the Constitution Act, 1867. Section 91(26) did not entrench the common law definition of “marriage” as it stood in
1867. The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our
Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.
Question 2:
Section 1 of the proposed legislation is consistent with the Charter. The purpose of s. 1 is to extend the right to civil marriage to same-sex couples and, in substance, the provision embodies the government’s policy stance in relation to the s. 15(1) equality concerns of same-sex couples. With respect to the effect of s. 1, the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the s. 15(1) rights of another.

Question 3:
Absent unique circumstances with respect to which the Court will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary
to their religious beliefs.
Doesn’t oppose LGBT marriage, but wants to critique it to attain it in the most progressive way possible with class, gender, race, etc. taken into account
 Disturbs the notion that marriage rests on naturalistic/biological bases
Marriage is a historically specific social institution, and not a naturalized/timeless one
Marriage is being defined less by gender and more by its support functions
What will same-sex marriage mean?
 Marriage fails to envision a transformative mode of family for all people and is problematically embedded in liberal notions of equality and choice
 Extension of formal equality creates exclusions for those who do not conform to the dominant norm
 Formal equality admits the Other only to the extent that they conform
 Doesn’t challenge the underlying foundations of the systematic problems
Sexing Citizenship:
 Inclusion comes at the cost of normalization/assimilation
 Neutralizes significance of sexual difference/identity
 De-politicizes sex (see M v. H)
Freedoms too Queer:
 Little Sisters case
 More public, eroticized, and political
 All these cases marked by ‘unruly edges’
M v. H
 Destabilized the meaning of conjugality
Conclusion:
 Need a reconception of citizenship as a transformation of sexual citizenship not premised exclusively on the familialization of social responsibility
 Not premised on the essentialization of lesbian/gay identity
 Reconception of sexual ethics focusing not on what is normal, but what is ‘concerned with a consent/reciprocity/respect.’
Challenges static/fixed notion of sexual identity

Issue:
What is the purpose of freedom of expression and how does it relate to s.2(b) of
Charter?
Legal Reasoning (SCC, McLachlin CJC Dissent):
There are various philosophical justifications for freedom of expression:
 1) Political Process Rationale = FOE is instrumental in promoting free flow of ideas essential to political democracy and functioning of democratic institutions. o This view is limited in that only expression relating to the political process is worthy of constitutional protection. o However, within these boundaries, protection for expression is absolute.
 2) Search for Truth = FOE promotes a “marketplace of ideas,” in which competing ideas vie for supremacy to the end of attaining the truth. o While FOE provides no guarantee that the truth will prevail, can be argued that it assists in promoting truth in ways which would be impossible without it. o Certain opinions are incapable of being proven as either true or false, but are nonetheless valuable (progressive society).
 3) Intrinsic Value = All persons have the right to self-realization – to form their own beliefs and opinions, and to express them freely. o FOE is valuable as an end in itself – supplement to more utilitarian rationales.
How do these justifications of FOE relate to s. 2(b) of the Charter?
 Due to broad wording of s. 2(b), there is no need to adopt any one definitive justification for “freedom of expression.”
Different justifications may assume varying degrees of importance in different contexts.
 Freedom of expression protects political, artistic, scientific and intimate expression.
 It relies on a combination of three core values: o Truth = contributes to public’s recognition of truth and growth of public knowledge. o Democracy = necessary for operation of truly democratic government o Individual autonomy = important to self-realization
 The first two are instrumental; the third is an intrinsic. o But all three rest on a premise that “human agency flourishes in communicative interaction” = transcends the “instrumental/intrinsic” dichotomy.

 Freedom of expression does not simply protect individual liberty from state interference; it also protects the individual’s freedom to communicate with others. o The structure of the constitution, reinforced by an individual rights culture, tends to suppress this social component. o Once we recognize that individual agency and identity emerge in the
social relationship of communication, traditional split between intrinsic and instrumental accounts of the value of FOE dissolves.
Moon  We value freedom of expression because fundamentally, it is the way that citizens participate in collective self-governance – the free exchange of ideas is vital to this process.
Contemporary liberalism has moved away from a focus on individual rights
- liberty will clash with equality
- state will have to restrict freedom of expression to protect vulnerable groups
How to reconcile the rights of liberty/equality in freedom of expression?
There is a tension over the definition of Liberty itself
- some support the regulation of pornography/hate speech because it distorts public debate
Facts:
Irwin Toy challenging ss.248-9 of the CPA, whose regulations provided that “no person may make use of commercial advertising directed at persons under 13.”
Irwin Toy claims that sections are ultra vires the province or inconsistent with
Quebec and Canadian Charters. Only key issue is whether the impugned sections violate s.2(b) of the Canadian Charter.
Issues:
1.
Does advertising aimed at children fall within the scope of freedom of expression?
2.
Was the purpose or effect of government action to restrict freedom of expression?
3.
If so, can it be justified under s.1?
Legal Reasoning (Dickson CJC):
1) Is plaintiff’s activity protected by freedom of expression?
 “Expression” has both content and form: o Form = Activity is “expressive” if it “attempts to convey meaning.” o Content = The “meaning” being expressed
 Freedom of expression is a fundamental value of Canadian society, because a democratic and multicultural country values diversity of ideas and opinions

 Therefore cannot exclude from scope of protection an expression based on its content or meaning – can only be excluded if it has no expressive content. o Exception = Violence as a form of expression not protected
 Irwin Toy  Passes first step of inquiry o Advertising aimed at children aims to convey a meaning and cannot be excluded as having no expressive content. o No basis for excluding it from sphere of protected activity.
2) Was purpose or effect of government action to restrict freedom of expression?
a) Purpose:
 What counts as invalid governmental purpose? o If purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed. o If purpose is to control access by others to the meaning or to control the ability of the one conveying it.
 What counts as a valid governmental purpose? o If purpose is to control only the physical consequences of certain human activity, regardless of meaning being conveyed. b) Effects:
 Once it is established that government had valid purpose, burden shifts to plaintiff to prove that its effect was nevertheless to restrict freedom of expression (indirectly)
 Plaintiff must demonstrate that impugned activity promotes a value underlying 2(b): o Pursuit of truth o Participation in the community o Individual self-fulfillment or human flourishing
 Irwin Toy:
 Government’s purpose = to prohibit particular content of expression in the name of protecting children.
 Ss. 248-249 CPA thus constitute limitations to s.2(b) of Charter
3) Is the limit on freedom of expression justified by s.1?
 Pressing and Substantial Objective  YES o Protection of vulnerable group from manipulation of ads o Court defers to legislature’s social science evidence
 Court should not substitute legislature’s estimate with their own
 Will defer as long as government exercises “reasonable judgment”
 Rational Connection  YES
 Minimal Impairment  YES o Court defers to legislature’s claim that this minimally impairs freedom o Relied on FTC Report – though it didn’t support the total ban,

legislature relied on its evidence and court found decision reasonable and therefore justified. o Respondent argues ban was not the only effective means – court disagrees (looks at Quebec’s precise purpose). o Court should not take restrictive approach
 Deleterious Effects  NO o Advertisers can direct ads to parents and adults o Advertisers can participate in educational advertising o Real concern is about money – they will have to develop new strategies.
Dissenting: (McIntyre J.)
 CPA infringes on freedom of expression and is not justifiable under s.1. o Welfare of children is not sufficiently at risk o Total ban below arbitrary age = no proportionality o Freedom of expression way too important to be limited so easily based only on social science evidence (too much judicial deference)
Holding:
Advertising aimed at children falls within freedom of expression. CPA provisions restrict that freedom, but restriction is justified under s.1.
Notes:
 Because SCC has defined expression so broadly that it includes all acts intended to convey a message, any act is potentially an act of expression. This also means that any law is potentially a restriction on expression. o Has SCC interpreted the scope of s.2(b) too broadly? o Exception to this is violence, but threats of violence do not qualify.
 When will effects of an act be considered “violent?”
 While all expressive content is worthy of protection, the method or location of the expression may not be. o Violence not excluded because of the message it conveys, but because the way in which it was conveyed is inconsistent with the
Charter. o Expressive activity should be excluded only if its method or location clearly undermine the values that underlie the guarantee.
 Distinction between laws that have as their purpose the control or restriction of expression and laws that merely affect it. o Where law’s purpose is to restrict, it automatically violates s.2(b). o Where it merely has the effect of restricting, violation will only occur if plaintiff can established that the expression advances a value underlying free speech (easy).
 USA looks at similar distinction between “content-based restrictions” and
“content-neutral, time, place and manner restrictions.”

Irwin Toy  More deferential, flexible, reasonableness-based approach to Oakes test, especially at minimal impairment stage.
Kinds of regulation  Irwin Toy turns on this distinction:
 Direct / tied to content o Obvious = actually trying to regulate content of speech
 Indirect / not tied to content o Not targeting expression, but clearly has an impact
 E.g. Comes up with rules like “no pamphlets on the street” with the purpose of reducing littering.
What does the claimant have to show if:
 The regulation is direct? (976) o Expression / conveying expressive content o Non-violent
 The regulation is indirect? (978-9) o Satisfy earlier requirements = expressive, non-violent o Also have to show that speech satisfies purposes of freedom of expression (underlying values).
Facts:
Keegstra was a high school teacher in Alberta. He was charged under s. 319(2) of the Criminal Code for unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. Keegstra expected students to reproduce his teachings in class and on exams. Keegstra claims that s.319 (2) infringes his freedom of expression as guaranteed by s. 2(b) of the Charter.
Issue:
Does s. 319 (2) infringe on guarantee of freedom of expression? Is it justified under s.1?
Legal Reasoning (Dickson J)
Section 2(b) of the Charter: Freedom of Expression
 Irwin Toy  The type of meaning being conveyed is irrelevant to the question of whether s .2(b) has been infringed.
 Since the promotion of hatred is a form of expression, it passes the first step of the analysis = broad interpretation. o Analysis of freedom of expression should be interpreted broadly and only contrasted with other Charter provisions at the s.1 analysis.
 Hate speech is not a form of violence falling within Irwin Toy exception
(exception interpreted narrowly as applying to physical violence).
 Objective of s. 319  Overt restriction of this form of expression. Therefore

meets the second requirement of the test
Section 1 analysis
 1) Pressing and Substantial Objective  YES o Hate propaganda is sufficient to warrant concern, causes two sorts of injury:
 Individual Emotional damage = Hostility has a severe impact on individual’s sense of self-worth, acceptance and belonging.
 Broader Public influence = Active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups. o Canada committed to various international human rights obligations which reflect the values and principles of a free and democratic society. o The objective of s.319(2) also exemplified through ss. 15 and 27 of the Charter = equality and multiculturalism. o Aims to prevent pain suffered by target groups and reduce racial tension in Canada.
 2) Proportionality o One core value underling freedom of expression is search for truth and common good  Little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. o Another core value is self-fulfillment  Message put forth by individuals who promote hate propaganda represent extreme opposition to the idea that members of identifiable groups should enjoy this aspect of the s 2(b) benefit. o The degree of limitation of participation in the democratic process
by s. 319(2) is not substantial. FOE can work to undermine our commitment to democracy where employed to propagate ideas contrary to democratic values. In the case of hate propaganda, groups are denied respect and dignity simply because of racial or religious characteristics, which is inherently undemocratic.
 a) Rational Connection  YES o Three ways in which legislation may be seen as irrational in carrying out its purpose:
 1. May promote cause of hatemongers by earning media attention
 2. Public may view suppression of expression as suspicious, as a result they may view such expression as containing an element of truth.
 3. Before WWII, Germany also possessed similar laws, which ended up useless. o Dickson  Hate propaganda laws are one part of a free and democratic society’s bid to prevent the spread of racism - s. 319 (2) illustrates to the public the severe reprobation with which society holds messages of hate.

 b) Minimal Impairment  YES o Keegstra argues that s. 319 (2):
 Is overly broad and vague in that it will infringe FOE excessively or may have a “chilling effect” whereby people who potentially fall within its ambit may exercise self-censorship.
 Should require proof of hatred resulting from a communication o Dickson’s response:
 Private statements are excluded from s. 319
 There is a mens rea element entailed by the requirement that hatred be “willful” = accused must have desired the promotion of hatred or have foreseen such consequences.
 Proof of hatred is not required as it would give insufficient attention to the emotional damage suffered by members of the
identifiable groups and it is too difficult to prove causation o s. 319 (2) does not unduly restrict freedom of expression as it possesses definitional limits, which act to safeguard the Parliament’s objective. o Deference = In response to other, less intrusive modes of combatting hate propaganda (other than Criminal), such as education programs, the court defers to legislature.
 Government may impose a more restrictive measure if it is not redundant and furthers the objective in ways that alternative responses could not.
 c) Balancing  YES o Due to importance of this objective and the fact that this form of expression is largely removed from the heart of FOE values, this is a reasonable limit of s 2(b).
(McLachlin CJC, dissenting)
 s. 319 (2) infringes freedom of expression, but promotes a pressing and substantial objective in protecting social harmony and individual dignity.
 Rational Connection  In assessing rational connection, it is not only necessary to consider Parliament’s intention but also the actual effects of the legislation: o May have a chilling effect on law-abiding citizens o In terms of hatemongers, it may promote their cause by:
 Increased media attention
 Bringing them sympathy (man vs. the state)
 s. 319 makes the state look as if they are trying to conceal the truth
 Historical evidence gives reason to believe that hate propaganda laws may have very serious negative effects (Nazi Germany) o  There is not a strong and evident connection between the criminalization of hate propaganda and its suppression.
 Minimal Impairment  s. 319(2) is overbroad in that its definitions of offending speech may catch many expressions which should be protected:

o “Hatred” is subjective and capable of denoting a wide range of diverse emotions o Requirement of “willfully promoted” is very vague
 Eliminates s. 319 (2) statements made for honest purposes such as telling a perceived truth or contributing to a political debate. But these purposes themselves are compatible with the intention of promoting hatred. o The main issue of such vagueness and over-breadth in combination with penal sanctions is the “chilling effect” on legitimate activities.
 People can’t predict the scope of s. 319 (2) and so will avoid expressing themselves or will confine their expression to noncontroversial matters. o Criminal sanctions are extremely harsh and restriction of hate speech would be better served by human rights legislation
(reparation over punishment).
 Balancing  Broad range of s. 319 (2) covers many different forms of expression without clear boundaries and harsh consequences outweigh the pressing and substantial objective it is meant to serve (its cost to FOE is too large). o The limit cannot be justified under s.1.
Holding:
Yes. Yes.
Facts:
Involves complaints with the Sask. Human Rights Commission over flyers distributed by Mr. Whatcott, which promoted hatred towards homosexuals. W. asserts that they are a legitimate expression of concern for the public and of his personal religious convictions, and that the Sask. Human Rights Code infringed on his right to expression.
JH:
Lower courts held that the flyers contravened s.14 of the Saskatchewan Human
Rights Code and that it represented a justified restriction on W.’s rights to freedom of religion and expression guaranteed by ss.2(a) and 2(b) of the Charter.
Issue:
Does the restriction on W.’s freedom of expression/religion represent a justifiable infringement?
Reasoning: (Rothstein J.)
Interpreting the word “hatred” in hate speech:
1. Prohibitions must be applied objectively
- would a reasonable person view expression as exposing protected group to hatred?
2. Must be interpreted restrictively to extreme manifestations of
‘detestation’ and ‘vilification’
- ‘repugnant’ and ‘offensive’ speech does not incite the level of abhorrence that risks causing discrimination or other harmful effects

3. Tribunals must focus their analysis on the effects of the expression at issue, whether it is likely to expose the targeted person/group to hatred by others
- repugnancy of the ideas being expressed is not enough to justify restricting expression
The use of the words “ridicules, belittles or otherwise affronts the dignity of” is unconstitutional. However, once struck, the remaining prohibition “exposes or tends to expose to hatred” is reasonable and justified.
Application: Freedom of Expression
1. Infringement?
- The prohibition against hate speech infringes the freedom of expression guaranteed under s.2(b) of the Charter
2. Section 1 Analysis:
(a) The limitation is prescribed by law
(b) The objective of limiting harmful effects of discrimination is pressing and substantial
- it risks harm not only to individuals but to society as a whole
(c) s.14(1)(b) of the Sask. Code is proportionate i. Rationally connected to its objective
- Only protects from public hate speech. Private conversations are not affected ii. It meets the minimal impairment requirements
- Once the words “ridicules, belittles, or affronts the dignity of” are out then it will be good iii. The benefits of the suppression of hate speech outweigh the detrimental effect of restricting expression
- Not all types of expression can be treated the same; different types will be relatively closer to or further from the core values behind the freedom, depending on the nature of the expression (with hate speech being far from it)
Hate speech does not require intent to cause harm
- Interpretation should focus on effects
Application: Freedom of Religion
(same reasons set out in freedom of expression s.1 analysis)
“Ridicules, belittles, or affronts the dignity of” is not rationally connected nor does it minimally impair freedom of religion
- once this is out then it is a reasonable limit on freedom of religion and is demonstrably justified in a free and democratic society
Holding:
Appeal allowed in part. The words “ridicules…” are not constitutional, and are removed. Either way, the infringement on W. is justified.

* To date there is no s.15 case in which the SCC has directly considered a challenge based on race
* BUT see Taxi Driver case: Bou Malhab v. Diffusion Métromédia, [2011]
- Arabic/Creole speaking taxi drivers alleged racial discrimination, defamation by radio-host for “uncleanliness, arrogance, incompetence, corruption and ignorance of official languages”
- Have to prove fault, injury, and causal connection for defamation (taken as a defamation suite not a Charter infringement)
- The large size of the group is detrimental to the suite
- An ordinary person would not have associate the allegations with each taxi driver whose mother tongue is Arabic or Creole personally
- Thus, proof that personal injury was sustained by the members of the group is missing, should be dismissed as a class action
Lack of knowledge about the history of Blacks in Canada
Importance of law as stabilizer and societal corrective
Law both aspirational and normative (should protect aspirations and hopes of blacks
- Also underscores bitter experience in general that blacks have had
Canadians must confront their own complicity
- Resulted in second-class citizenship for blacks in Canada
Seeks to contextualize/historicize role of the law to show how it has affected Blacks experience of participation in Canadian society
- Experiential knowledge of racism is discounted
Response to ‘critique of rights’ from first class
- Idea that rights are vague/ineffectual
Rights are critical to those who are disempowered and for what they mean for transformatory struggle
- Thornhill also recognizes critical need not to abandon them
Importance of context in formulating legal remedies (experiential knowledge)
- Role of law/lawyers in this struggle
- Access to justice
 Subordinating effects of traditional law and legal analysis
 Exclusion of disadvantage groups from articulation of justice
Law fails to reach those who need it most
Rights are meaningful only if the alleviate social suffering
How can we make them more meaningful?

- Acknowledges that rights are limited, but have had huge impact on civil rights movement
- Black lawyers have different perspectives on issues than white lawyers;
(importance of context)
(White professor doesn’t need to focus so much on rights because of the lack of substantive inequality that he faces)
Rights rhetoric remains an effective way to combat discrimination
Needs vs. Rights
- The rights argument has proven more effective
- Have to construct rights that are meaningful to solve their needs
Black conceived notion of rights building on experiences of the excluded groups themselves (experiential knowledge)
- Calls for expanded frame of rights reference