Table of Contents
ADOPTION OF THE CHARTER
3
THE HON. PIERRE ELLIOTT TRUDEAU (MINISTER OF JUSTICE), “A CANADIAN CHARTER OF HUMAN
RIGHTS”
3
CAIRNS, “CHARTER VERSUS FEDERALISM: THE DILEMMAS OF CONSTITUTIONAL REFORM”
3
RUSSELL, “THE POLITICAL PURPOSES OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS”
3
WEINRIB, “OF DILIGENCE AND DICE: RECONSTITUTING CANADA’S CONSTITUTION”
4
WEINRIB, “CANADA’S CHARTER OF RIGHTS: PARADIGM LOST?”
4
GOLD, “THE MASK OF OBJECTIVITY: POLITICS AND RHETORIC IN THE SUPREME COURT OF CANADA”
4
BOGART, “COURTS AND COUNTRY”
5
PETTER, “IMMACULATE DECEPTION: THE CHARTER’S HIDDEN AGENDA”
5
WEINRIB, “LIMITATIONS ON RIGHTS’ IN A CONSTITUTIONAL DEMOCRACY”
5
HOGG AND BUSHELL, “THE CHARTER DIALOGUE BETWEEN COURTS AND LEGISLATURES (OR
PERHAPS THE CHARTER OF RIGHTS ISN’T SUCH A BAD THING AFTER ALL)”
6
IACOBUCCI J. IN VRIEND V. ALBERTA, [1998]
6
DEFINING LIMITATIONS: SECTION 1 AND THE OAKES TEST
6
HUNTER V. SOUTHAM, [1984]
MACKLEM, “SOCIAL RIGHTS IN CANADA”
R. V. NOVA SCOTIA PHARMACEUTICAL SOCIETY
R. V. OAKES, [1986]
EDMONTON JOURNAL V. ALBERTA
IRWIN TOY LTD V. QUEBEC
6
7
8
9
11
12
FREEDOM OF RELIGION: THE SCOPE OF S.2(A) OF THE CHARTER
13
MOON, “LIBERTY, NEUTRALITY AND INCLUSION”
R. V. BIG M DRUG MART LTD, [1985]
13
14
FREEDOM OF RELIGION: THE RESTRICTIONS AND ACCOMMODATION OF RELIGIOUS
PRACTICE
15
SMITHEY, “RELIGIOUS FREEDOM AND EQUALITY CONCERN”
15
MOON, “RELIGIOUS COMMITMENT AND IDENTITY”
17
SYNDICAT NORTHCREST V. AMSELEM, [2004]
18
MULTANI V. COMMISSION SCOLAIRE MARGUERITE-BOURGEOYS, [2006]
21
CARTER AND LANGAN, “CANADIAN SUPREME COURT GIVES STRONG ENDORSEMENT TO FREEDOM OF
RELIGION”
23
ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY, [2009]
25
MOON, “ACCOMMODATION WITHOUT COMPROMISE”
28
BERGER, “CONSTITUTIONAL REASONING AND CULTURAL DIFFERENCE: ASSESSING THE IMPACTS OF
ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY"
30
RELIGIOUS FREEDOM
31
BRUKER V. MARCOVITZ, [2007]
31
OGILVIE, “(GET)TING OVER FREEDOMS IN CANADA”
MOON, “BRUKER V. MARCOVITZ: DIVORCE AND THE MARRIAGE OF LAW AND RELIGION”
32
34
MINORITY RIGHTS AND SECTION 27 OF THE CHARTER
36
CANADIAN CHARTER OF RIGHTS AND FREEDOMS: SECTION 27
KYMLICKA, “THE NEW DEBATE ON MINORITY RIGHTS”
YOUNG, “STRUCTURAL INJUSTICE & THE POLITICS OF DIFFERENCE
BOUCHARD-TAYLOR REPORT (CASEBOOK 878-880)
R. V. N.S., [2012 ]
36
36
38
39
39
THINKING ABOUT INDIGENOUS LEGAL ORDERS
41
NAPOLEON, “THINKING ABOUT INDIGENOUS LEGAL ORDERS”
41
NAPOLEON, “INDIGENOUS LEGAL ORDERS AND THE COMMON LAW”
42
HENSHAW, “THE WETIKO”
42
NIEZEN, “CULTURE AND THE JUDICIARY: THE MEANING OF THE CULTURE CONCEPT AS A SOURCE OF
ABORIGINAL RIGHTS IN CANADA”
42
EQUALITLY RIGHTS V. RELIGIOUS FREEDOM
42
OKIN, “IS MULTICULTURALISM BAD FOR WOMEN?”
VOLPP, “FEMINISM VERSUS MULTICULTURALISM”
42
44
EQUALITY RIGHTS AND S15 OF THE CHARTER (1231-1247)
44
ANDREWS V. LAW SOCIETY OF BRITISH COLUMBIA, [1989] (1237-1247)
SHEPPARD, “CONSTITUTIONAL EQUALITY: CHALLENGES & POSSIBILITIES”
45
48
EQUALITY AND S.15 OF THE CHARTER
51
LAW V. CANADA
51
RYDER, “WHAT’S LAW GOOD FOR?”
56
SAMPSON, “LEAF AND THE LAW TEST FOR DISCRIMINATION: AN ANALYSIS OF THE INJURY OF LAW
AND HOW TO REPAIR IT”
57
R V. KAPP, [2008]
59
MOREAU, “R V. KAPP: NEW DIRECTIONS FOR SECTION 15”
63
WITHLER V. CANADA (ATTORNEY GENERAL), [2011]
63
GROUNDS OF DISCRIMINATION & INTERSECTIONALITY
65
POTHIER, “CONNECTING GROUNDS OF DISCRIMINATION TO REAL PEOPLE”
CORBIERE V. CANADA, [1999]
65
66
SEXUAL ORIENTATION AS A GROUND FOR DISCRIMINATION
69
WINTEMUTE, “SEXUAL ORIENTATION AND THE CHARTER”
REFERENCE RE SAME SEX MARRIAGE, [2004]
COSSMAN, “SEXING CITIZENSHIP, PRIVATIZING SEX”
69
70
71
FREEDOM OF EXPRESSION UNDER S.2(B) OF THE CHARTER
72
R V. KEEGSTRA, [1990]
MOON, “THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION”
FISS, “LIBERALISM DIVIDED FREEDOM OF SPEECH AND THE MANY USES OF STATE POWER”
72
72
73
IRWIN TOY LTD V. QUEBEC, [1989]
73
HATE SPEECH
76
R V. KEEGSTRA
SASKATCHEWAN HUMAN RIGHTS COMMISSION V. WHATCOTT
76
79
SECTION 15 AND RACE
81
THORNHILL, “SO SELDOM FOR US SO OFTEN AGAINST US”
WILLIAMS, “ALCHEMICAL NOTES: RECONSTRUCTING IDEALS”
81
81
Adoption of the Charter
The Hon. Pierre Elliott Trudeau (Minister of Justice), “A Canadian Charter of
Human Rights”
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)
Cairns, “Charter Versus Federalism: The Dilemmas of Constitutional Reform”
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)
Russell, “The Political Purposes of the Canadian Charter of Rights and
Freedoms”
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
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
Weinrib, “Of Diligence and Dice: Reconstituting Canada’s Constitution”
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
Weinrib, “Canada’s Charter of Rights: Paradigm Lost?”
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”
Gold, “The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of
Canada”
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
Bogart, “Courts and Country”
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
Petter, “Immaculate Deception: The Charter’s Hidden Agenda”
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
Weinrib, “Limitations on Rights’ in a Constitutional Democracy”

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).
Hogg and Bushell, “The Charter Dialogue Between Courts and Legislatures (Or
perhaps the Charter of Rights isn’t such a bad thing after all)”
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
Iacobucci J. in Vriend v. Alberta, [1998]
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
Defining Limitations: Section 1 and the Oakes Test
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.”
Hunter v. Southam, [1984]
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
Macklem, “Social Rights in Canada”
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
R. v. Nova Scotia Pharmaceutical Society
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.
R. v. Oakes, [1986]
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.
Edmonton Journal v. Alberta
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
Irwin Toy Ltd v. Quebec
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
Freedom of Religion: The Scope of S.2(a) of the Charter
Moon, “Liberty, Neutrality and Inclusion”
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?
R. v. Big M Drug Mart Ltd, [1985]
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.
Freedom of Religion: The Restrictions and Accommodation of
Religious Practice
Smithey, “Religious Freedom and Equality Concern”
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
Moon, “Religious Commitment and Identity”
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
Syndicat Northcrest v. Amselem, [2004]
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.
Multani v. Commission scolaire Marguerite-Bourgeoys
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.
Carter and Langan, “Canadian Supreme Court Gives Strong Endorsement to
Freedom of Religion”
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
Alberta v. Hutterian Brethren of Wilson Colony, [2009]
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.

Moon, “Accommodation Without Compromise”
Photo requirements, it was argued by the Hutterians, would force community
members to choose between two elements of their religious commitment: Respect
for the 2nd 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
Berger, “Constitutional Reasoning and Cultural Difference: Assessing the
Impacts of Alberta v. Hutterian Brethren of Wilson Colony”
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?
Religious Freedom
Bruker v. Marcovitz, [2007]
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.
Ogilvie, “(Get)ting Over Freedoms in Canada”
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
when the civil courts should exercise restraint in adjudicating religious
matters
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.
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…)
Moon, “Bruker v. Marcovitz: Divorce and the Marriage of Law and Religion”
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
Minority Rights and Section 27 of the Charter
Canadian Charter of Rights and Freedoms: Section 27
27. This Charter shall be interpreted in a manner consistent with the preservation
and enhancement of the multicultural heritage of Canadians.
Kymlicka, “The New Debate on Minority Rights”
Minority rights have to the forefront in the 20th 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)
Young, “Structural Injustice & the Politics of Difference
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
Bouchard-Taylor Report (Casebook 878-880)
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
R. v. N.S., [2012 ]
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.
Thinking About Indigenous Legal Orders
Napoleon, “Thinking about Indigenous Legal Orders”
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
Known as Positive Law
(Legal Positivism)
Law comes from a central
authority through a
formal process.
Known as Customary Law
(E.g., Canadian
Constitutions, Indian Act,
etc.)
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 from the Divine or
from Outside Human
Beings
Known as Natural Law
Law comes from a divine
authority or from basic
human characteristics.1
(E.g., Ecclesiastical law,
etc.)
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.
Napoleon, “Indigenous Legal Orders and the Common Law”
Henshaw, “The Wetiko”
Niezen, “Culture and the Judiciary: The Meaning of the Culture Concept as a
Source of Aboriginal Rights in Canada”
Equalitly Rights v. Religious Freedom
Okin, “Is Multiculturalism Bad For Women?”
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)
Volpp, “Feminism Versus Multiculturalism”
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
Equality Rights and s15 of the Charter (1231-1247)
* 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.
Andrews v. Law Society of British Columbia, [1989] (1237-1247)
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.
Sheppard, “Constitutional Equality: Challenges & Possibilities”
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)
Equality and s.15 of the Charter
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.
Law v. Canada
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.
Ryder, “What’s Law Good For?”
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]
Sampson, “LEAF and the Law Test for Discrimination: An Analysis of the Injury
of Law and How to Repair It”
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)
R v. Kapp, [2008]
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 3rd step.
Moreau, “R v. Kapp: New Directions for Section 15”
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?
Withler v. Canada (Attorney General), [2011]
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.
Grounds of Discrimination & Intersectionality
Pothier, “Connecting Grounds of Discrimination to Real People”

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]
Corbiere v. Canada, [1999]
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 2nd and 3rd 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
Sexual Orientation as a Ground for Discrimination
Wintemute, “Sexual Orientation and the Charter”
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
Reference re Same Sex Marriage, [2004]
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.
Cossman, “Sexing Citizenship, Privatizing Sex”
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
Freedom of Expression under S.2(b) of the Charter
R v. Keegstra, [1990]
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.
Moon, “The Constitutional Protection of Freedom of Expression”



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.
Fiss, “Liberalism divided Freedom of speech and the many uses of state power”
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
Irwin Toy Ltd v. Quebec, [1989]
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).
Hate Speech
R v. Keegstra
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.
Saskatchewan Human Rights Commission v. Whatcott
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.
Section 15 and Race
* 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
Thornhill, “So Seldom For Us So Often Against Us”
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
Williams, “Alchemical Notes: Reconstructing Ideals”
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