Bill 21 and the Search for True Religious Neutrality

The saga of Quebec’s Bill 21, An Act respecting the laicity of the State, trudges on. In December, the Quebec Court of Appeal upheld a Superior Court decision declining to suspend certain parts of the law – which prohibits front-line public employees from displaying overt religious symbols while on duty – until a full application for judicial review pursuant to the Charter of Rights and Freedoms could be heard. The applicants who sought the suspension claim that Bill 21 violates (among other things) the guarantees of freedom of religion and the right to equality respectively protected by sections 2(a) and 15 of the Charter. An appeal to the Supreme Court of Canada is expected to be heard on the suspension issue. Meanwhile, the Superior Court has ordered that three other Charter challenges which have been launched in the interim be heard at the same time as the original application for judicial review.

The Quebec government insists that Bill 21 is grounded in the constitutional principle of the religious neutrality of the state. Such descriptions, however, fundamentally misstate what religious neutrality ought to require of state actors. At its core, Bill 21 is inconsistent with the trajectory of religious neutrality in Canadian public law. Granted, this principle has been subject to conflicting scholarly and judicial visions of what the state’s constitutional obligations are vis-à-vis religion. Yet as I argue in this post, religious neutrality, holistically and purposively understood, ensures that the state treats religious adherents fairly by preserving equal space for their participation in public life.

Canadian conceptions of religious neutrality tend to fall along a spectrum. At one end we have those who see religious neutrality as essentially privatizing all aspects of religious belief. We might describe this as closed religious neutrality, to borrow language used by Janet Epp Buckingham. In its most extreme form, this type of neutrality seeks to purge any and all expressions of religious conviction from the public square. Only secular or irreligious worldviews can inform public discourse, and the state is prevented from even indirectly facilitating religious expression. Richard Moon describes this approach to religious neutrality as essentially relegating matters of religious faith to the private sphere, subject to a view that “[s]tate neutrality is possible only if religion can be treated as simply a private matter — separable from the civic concerns addressed by the state” (para 4).

On the other end of the spectrum we have what I call inclusive religious neutrality. Unlike closed approaches to religious neutrality, inclusive religious neutrality recognizes that the state is only one of numerous actors in the public square and has no jurisdiction to exclude religious perspectives from public life. Under this conception of religious neutrality, the state is permitted and even encouraged to preserve and create positive public space for religious adherents (such as, for example, by subsidizing charitable religious activities which pursue a common or public good) so long as it does so in an even-handed manner and does not privilege one religious group to the exclusion of others.

Inclusive religious neutrality affirms that the state is not competent to arbitrate religious debates, even where these disputes have public implications. This is subject to the obvious caveat that the state will always have a vested interested in curbing or discouraging objectively harmful religious practices. But beyond this otherwise narrow exception, it is rarely appropriate for the state to act in a way that has the effect of promoting or stigmatizing certain religious beliefs or practices. Inclusive religious neutrality is thus reinforced by equality-enhancing values which recognize that the state’s uneven support for certain beliefs suggests that those who do not adhere to these beliefs are less deserving of public citizenship.

Although not necessarily identified as such, the constitutional commitment to equality was one of the driving forces behind Chief Justice Brian Dickson’s oft-quoted decision in R v Big M Drug Ltd Mart, [1985] 1 SCR 295 [“Big M”], the first Charter-era ruling from the Supreme Court on freedom of religion. While the Chief Justice recognized that the guarantee of freedom of religion is grounded in principles of individual liberty, his reasons also highlighted why explicitly religious laws (in that case legislation requiring businesses to observe the Christian Sabbath) will run afoul of the Charter, noting that the “theological content of … legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture” (para 97).

On this point, Bruce Ryder has written at length about how the Canadian constitutional commitment to substantive equality intersects with the right of religious adherents to participate in public life as equal citizens. As Ryder explains:

[T]he Canadian conception of equal religious citizenship is not confined to a private or religious sphere of belief, worship and practice. Instead, a religious person’s faith is understood as a fundamental aspect of his or her identity that pervades all aspects of life. … They have a right to participate equally in the various dimensions of public life without abandoning the beliefs and practices their faith requires them to observe. In contrast, some other liberal democracies are more likely to insist that citizens participate in public institutions on terms that conform to the state promotion of secularism. On this view, equal religious citizenship is confined to the private sphere, and must give way to the secular requirements of public citizenship. (2)

Inclusive religious neutrality, as I have described it here, is inextricably tied to Ryder’s articulation of the concept of equal religious citizenship. Religious neutrality presumes that religion is no more or less immutable than the other grounds of discrimination enumerated in section 15 of the Charter. This is to say that religion is “constructively immutable”, which means that it is just as impermissible for the state to discriminate against someone because of their religious beliefs or identity as it is to discriminate on the basis of immutable grounds such as race or gender. While this point may seem trite, laws and policies like Bill 21 are a sobering reminder of the tendency of many state actors to treat religious belief as something which can be readily detached from a person’s core identity.

It should be clear by now that religious neutrality is more than a derivative duty imposed on the state by some combination of sections 2(a) and 15 of the Charter. Indeed, it would be a critical mistake to conclude that religious neutrality begins and ends with the text of the Constitution. The dyadic guarantees of religious freedom and religious equality, as the Supreme Court affirmed in Saumur v Quebec (City), [1953] 2 SCR 299 [“Saumur”], are “a fundamental principle of our civil polity” (342). Religious neutrality is thus a pre-existing, foundational and enforceable legal principle which explains why the Charter protects religious adherents. Without a proper understanding of what religious neutrality demands, there is no principled reason why the state should be prevented from pursing an ecclesiastical agenda or discriminating against religious adherents.

Granted, the very idea of religious neutrality, whether closed or inclusive, is ultimately a conceit. From a philosophical perspective, policy-making is a fundamentally normative undertaking. Whenever the state implements or pursues a given policy – no matter how benign – it is making a statement about what society ought to look like. Such declarations are informed by assumptions about what morality and justice demand. In this way, Benjamin Berger explains, “religion will have much to say about matters of broad public policy import”, in that the state’s adoption “of positions on such matters will … involve position-taking on matters of deep religious interest” (772).

When viewed from an inclusive perspective, however, the state’s duty of religious neutrality does not bestow the state with a “secularizing mission” – quite the opposite. Secularism, like all worldviews, is built on assumptions about divinity, society and what it means to be human. In other words, secularism is itself a religion. Although this may seem counterintuitive, religion, functionally defined, does not require faith in a higher deity or even the supernatural. As American political theologian Jonathan Leeman writes, “any and every position that a person might adopt in the political sphere relies upon a certain conception of human beings, their rights and their obligations toward one another, creation and God” (81). In this sense, Leeman explains, religion “determines … the worldview lens through which we come to hold our political commitments.” (Id) Thus, everyone is, to some degree, religious. This is why an inclusive approach to religious neutrality seeks to ensure that the state does not directly or indirectly support irreligious worldviews over religious ones. If irreligiosity is just another form of religion, then official state support for irreligion will favour some religious adherents (namely secularists, atheists and agonistics) over others.

Since the advent of the Charter, the Supreme Court has trended toward the inclusive conception of religious neutrality which I have outlined above. As noted, Dickson CJC’s reasons in Big M prevent majoritarian religions from excluding minority religious groups from public life. In the decades since this landmark ruling, the Supreme Court has articulated with increasing precision what the state’s duty of religious neutrality entails. The Court’s majority ruling in S.L. v Commission scolaire des Chênes, 2012 SCC 7 [“S.L.”] is particularly instructive, in which Deschamps J found that neutrality is realized when “the state neither favours nor disfavours any particular religious belief, that is, when it shows respect for all postures toward religion, including that of having no religious beliefs whatsoever” (para 32).

Justice Gascon’s majority reasons in the Supreme Court’s subsequent ruling in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 take Deschamps J’s observations from S.L. even further. A truly neutral public space, Gascon J noted, “does not mean the homogenization of private players in that space” since “[n]eutrality is required of institutions and the state, not individuals” (para 74). Religious neutrality thus protects the “freedom and dignity” of believers and non-believers alike, and in doing so promotes and enhances Canadian diversity (Id).

Bill 21 is a quintessential example of how a closed approach to religious neutrality excludes religious minorities from the full benefits of public citizenship, contrary to Gascon J’s vision of “a neutral public space that is free of discrimination and in which true freedom to believe or not believe is enjoyed by everyone equally” (Id). Despite what its proponents may argue, Bill 21 does not preserve a religiously neutral public space, but instead forces front-line public employees to give the appearance of irreligiosity to the extent that they want to keep their jobs. The Quebec government’s decree that these employees hide their faith-based identities while undertaking their public duties is actually an insistence that they adopt completely alien religious identities if they are to participate fully in public life. Such a policy is anathema to an inclusive conception of religious neutrality.

None of this is to say that the Charter challenges which have been launched against Bill 21 are certain or even likely to succeed. The Quebec government’s invocation of the section 33 override – allowing Bill 21 to operate notwithstanding violations of sections 2(a) and 15 of the Charter – makes the outcome of any application for judicial review uncertain. Yet as others (including on this blog) have observed, there are a number of compelling arguments to be made that section 33 does not insulate Bill 21 against infringements of section 28 (i.e. the equal application of the Charter to men and women) or violations of the federal division of legislative powers.

In a similar vein, a strong argument can be made that section 33 cannot be invoked to insulate Bill 21 against violations of religious neutrality, since this constitutional duty pre-dates and exists independent of the Charter. This is not to say that religious neutrality is an unwritten constitutional principle, per se, since unwritten principles cannot be used to fill in perceived gaps in the rights and freedoms guaranteed by the Charter. The unwritten constitutional principles which have been recognized by the Supreme Court (namely federalism, democracy, constitutionalism and the rule of law, and the protection of minorities) differ from religious neutrality in that the latter is grounded in specific pre-Charter constitutional protections which directly inform enforceable Charter guarantees. To use section 33 to override the state’s duty of religious neutrality would be, in the language of Saumur, to circumvent “an admitted principle” of Canadian public law (342). Advocates for the rights of religious minorities can only hope the courts will agree.

For a more thorough examination of the development of the principle of religious neutrality in Canadian law, see my paper “Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter”, (2019) 91 SCLR (2d) 219.

Day Eight: Anna Su

University of Toronto

There are many reasons for judges (especially at the highest court) to write separate dissenting opinions. The first, in my view, is that it sets forth clear positions on the major legal issues of the day, ready to be taken on anew in a future judgment. In that sense, it is the Supreme Court that becomes the venue for important legal debate, especially for novel constitutional questions. It should not only be the task of academics to recognize and reflect on these significant controversies and to lead the intellectual discussion. A second, more canonical, reason for dissents is that some judge might perceive its truth somewhere down the road and it becomes law in the future. Of course, it might not always happen. But at the very least, at that moment, the possibility that judges can dissent can somewhat improve the majority opinion. Or at least one would hope. I chose these three opinions because they 1) clearly identify a recurring debate in constitutional law, and 2) I hope they could be a prompt for future justices to reconsider how they look at cases in that particular subject.

Justices Binnie and Lebel in Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791

“This does not mean that the courts are well placed to perform the required surgery.”

In their joint dissent in Chaoulli, Justices Binnie and Lebel emphasized a minimalist role for the judiciary in deciding the question of whether the prevailing single-tier health care system in Quebec was compliant with the s.7 guarantee under the Charter. Both justices would have upheld the Quebec prohibition on private health insurance as they questioned the appropriateness of the court passing judgment on what constitutes “reasonable health services”. The dissent is persuasive in holding the dispositive effect of the phrase “principle of fundamental justice” – the bread and butter component of s.7 litigation – under close scrutiny. Indeed, as the dissent went, a legislative policy cannot be deemed arbitrary just because we may disagree with the decision. The dissent acknowledged that the existence of waiting times is certainly a public concern and that a two-tier health care system would have a negative impact on the integrity, functioning and viability of the public system, but it expressed skepticism that this is within the purview of courts to evaluate.

Over the course of its s.7 jurisprudence, the SCC has given the phrase “principles of fundamental justice” substantive content by defining them as principles against arbitrariness, vagueness, overbreadth and gross disproportionality. Arbitrariness in particular, refers to the relationship between the means adopted and the policy objective. The dissent shows the indeterminacy of this standard. In contrast to the characterization of the majority, the dissent showed an equally plausible and clear relation between the prohibition against private health insurance and the preservation of access to a health system based on need.

There will be many more cases to be litigated under s.7. A prominent one in the offing is the recently filed suit by minors against the federal government for violating their s.7 rights to life, liberty and security of the person for, among others, its failure to curb greenhouse gas emissions that is incompatible with a stable climate system. The question of whether courts are the right venues to seek relief thus remains evergreen. The broad themes of the Chaoulli dissent illustrate the limitations and possibilities of s.7 case law.

Justice Abella in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

Justice Abella’s spirited dissent began with a succinct encapsulation of what the s.2(a) doctrinal framework is about. Freedom of religion is an important constitutional value. Accordingly, there is a high threshold to be met by any infringing measure. It is a very good illustration of what it means to take freedom of religion seriously in a pluralistic society, regardless of the final outcome. In this case, the controversy was whether the Hutterites were entitled to an accommodation from the mandatory photo requirement in drivers’ licenses on the grounds that their religion forbade them from having their photos willingly taken. Justice Abella laid out the drastic harm to the constitutional rights of the Hutterites, absent such exemption, since it would not allow them to maintain the autonomous and insular nature of their communities without any driving privileges.

This point is greatly appreciated especially in juxtaposition with how the majority opinion disposes of this argument, which suggested that the Hutterites could avail of third-party transport for necessary services. In his landmark essay Nomos and Narrative, the late legal scholar Robert Cover wrote about the jurispathic function of courts—that is, their ability to quash other commitments and forms of interpretation when they are incompatible with national norms. Religious freedom cases brought before courts often highlight this ability. In such cases, courts assert one law, often the state’s, to the rejection of all others. I am always reminded of this when I read opinions that make short shrift of the constitutional promise to celebrate pluralism and its guarantee to protect religious liberty. Justice Abella’s dissent in Hutterian is not one of them.

The dissent also fleshes out what proportionality stricto sensu in the Oakes test looks like. As the majority points out, this stage has not often been used in Charter cases.

Justice L’Heureux-Dubé in R v Van der Peet, [1996] 2 SCR 507

The dissent by Justice L’Heureux-Dubé in Van der Peet offers an explanation of why the ideal of legal reconciliation (one of the many dimensions of reconciliation) between Canada and its indigenous population remains an aspiration, rather than reality. Professor John Borrows, for instance, still criticizes the originalist framework for proving aboriginal rights that Van der Peet has ushered in and urges lawyers and academics to reject history as the sole determinant of legal analysis under s.35. But in 1996, Justice L’Heureux-Dubé already rejected the frozen rights approach she saw the majority opinion to be taking, and emphasized that “the notion of aboriginal rights must be open to fluctuation, change and evolution, not only from one native group to another, but also over time.”

In particular, her approach to interpreting aboriginal rights rejects the reliance

on the proclamation of sovereignty by the British imperial power as the “cut-off” for the development of aboriginal practices, traditions and customs overstates the impact of European influence on aboriginal communities. Taking British sovereignty as the turning point in aboriginal culture assumes that everything that the natives did after that date was not sufficiently significant and fundamental to their culture and social organization.  This is no doubt contrary to the perspective of aboriginal people as to the significance of European arrival on their rights.

Moreover, “crystallizing aboriginal practices, traditions and customs at the time of British sovereignty creates an arbitrary date for assessing existing aboriginal rights”.

And finally, Justice L’Heureux-Dubé writes:

the “frozen right” approach imposes a heavy and unfair burden on the natives: the claimant of an aboriginal right must prove that the aboriginal practice, tradition or custom is not only sufficiently significant and fundamental to the culture and social organization of the aboriginal group, but has also been continuously in existence, but as the Chief Justice stresses, even if interrupted for a certain length of time, for an indeterminate long period of time prior to British sovereignty. This test embodies inappropriate and unprovable assumptions about aboriginal culture and society. It forces the claimant to embark upon a search for a pristine aboriginal society and to prove the continuous existence of the activity for “time immemorial” before the arrival of Europeans.


Dissents in Canadian constitutional law opinions are far from being nasty “body slams,” as Dahlia Litwick describes dissenting opinions in the US Supreme Court, but they fulfill similar functions. At the very least, they enhance the legitimacy of judicial institutions since they reinforce the impartiality and independence of judges. There should be more of them.

Day Seven: Howard Kislowicz

The Disagreement is the Law

Howie Kislowicz

On the surface, dissenting judgments paint alternative visions of the law in a particular case. More deeply, they demonstrate that disagreement is a fundamental feature of the way law is made in our legal tradition. I did not choose the three dissenting views highlighted here because I think they “got the law right” (though I agree with some elements of them). I chose them because, each in their own way, they question an orthodoxy  and address the contingencies of Canadian constitutional law. 

McLachlin J in Adler 

In Adler, two groups of parents who sent their children to private religious schools sought a constitutional remedy on the basis of their religious freedom and equality rights. They were aggrieved because, though the Ontario government funded Catholic schools pursuant to its constitutional obligations under the s. 93 of the Constitution Act 1867, it did not fund any other religious schools. Adler is most often discussed in relation to the question of what courts do when one part of the Constitution appears to conflict with another. The answer, that one part of the constitution cannot invalidate another, had previously been given.(FN 1: Or, as I prefer, the legal equivalent of the theological question: could an omnipotent god create a brisket so big that even they couldn’t eat it?)

My focus here, however, is on Justice McLachlin’s (as she then was) Charter analysis. The majority held that s. 93 created a comprehensive code with respect to education, and this included the provision of both public and Catholic or Protestant schools. As such, the majority reasoned, no aspect of this system could be subject to Charter review.

Justice McLachlin, however, held that the constitutional obligations imposed by s 93 were for “Ontario to fund schools for the Roman Catholic minority in Ontario.” In other words, only the support of Catholic schools, not of public schools, was shielded from Charter scrutiny. This opened the door to Charter analysis.

Justice McLachlin held that the absence of funding for non-Catholic religious schools was not a religious freedom problem: no one was prohibited from sending their children to such schools. 

She went on, however, to consider the position of non-Catholic religious schools in contrast with that of secular public schools. I would wager that for many such an analogy might seem of no assistance. The religious parents in Adler could, after all, send their children to the funded public schools. From one perspective, such access represents equality, it does not violate it. The reason Justice McLachlin’s judgment stands out is because it engages directly with the perspective of the religious parents. “To these children,” Justice McLachlin held, “public education is as inaccessible as a job on the construction site was to [a turban-wearing Sikh person].” While Justice McLachlin ultimately held that the infringement of equality rights was justified, she showed a remarkable capacity to understand a perspective that might easily have been dismissed. She was also careful to specifically reject the argument that any disadvantage experienced by the religious families was due to their choice of religion: “If a charge of religious discrimination could be rebutted by the allegation that the person discriminated against chose the religion and hence must accept the adverse consequences of its dictates, there would be no such thing as [religious] discrimination.”

Abella J in NS 

A second dissent that has stayed with me is Justice Abella’s in R v NS. The case addressed whether the complainant in a sexual assault prosecution could testify while wearing a niqab, a veil worn by some Muslim women that covers the whole face except the eyes. The two accused argued that this would compromise their fair trial rights by depriving court and counsel of access to her demeanour. 

The majority created a test designed to balance the fair trial rights of the accused and the religious freedom rights of the complainant. While the test speaks in terms of reconciling competing interests, I think Faisal Bhabha was right when he wrote that the impact of the test is likely that niqabi sexual assault complainants will have to choose between testifying without their niqab or not testifying (see also para 96 of the dissent). Sexual assault prosecutions typically require testimony from the complainant to lead to a conviction, and the test is structured to make such important testimony subject to a no-niqab rule (see also Natasha Bakht’s work). 

One of the challenges in the case is that it hinges on the assumption that a witness’s demeanour is a valuable indicator of their credibility. The social science on this question tends in the opposite direction, suggesting that ordinary people do no better than chance at detecting deception (see here and here). Though some of this social science was put to the court, this was not done through an expert witness who was able to stand for cross-examination. Accordingly, the majority of the court would not change the common law’s widespread assumption that watching a witness testify provides reliable information about their credibility. 

Justice Abella’s dissent is compelling because this did not end the analysis for her. Instead of going down the path of the social science, Justice Abella used the common law’s tradition of analogical reasoning to question the position that a witness must testify with their face showing. Perhaps most persuasive is the analogy she draws to those with “physical or medical limitations that affect a judge’s or lawyer’s ability to assess demeanour. A stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking… yet none has ever been held to disqualify the witness from giving his or her evidence.” This passage is remarkable because it challenges a deep assumption of our legal processes and, like Justice McLachlin’s dissent in Adler, it refuses to treat religion differently than disability on the grounds that religion is “chosen.”

La Forest J in Provincial Judges’ Reference

The last dissent I highlight relates to the unwritten aspects of our Constitution. The Provincial Judges Reference addressed whether the principle of judicial independence constrained legislatures’ powers to limit the salaries of provincial judges. The disagreement between the majority and the dissent reveals a fundamental divergence in the conception of what Canada’s Constitution is and how courts should understand it. 

For the majority, the text of the Constitution only incompletely lays out the principle of judicial independence: “[t]he only way to explain the interpretation of ss. 96 and 100… is by reference to a deeper set of unwritten understandings which are not found on the face of the document itself”. The majority referred to the preamble to the Constitution Act, 1867, which expresses the desire to form a country “with a Constitution similar in Principle to that of the United Kingdom.” This, the Court held, points us to seek the Constitution’s “organizing principles” in “the legal and institutional structure” of the United Kingdom. 

This way of reading the constitution, by reference to underlying or organizing principles that are not explicit in the text, has become familiar. But Justice La Forest presented a way of engaging with the Constitution more firmly anchored in its text. He accepted that the Constitution “embraces unwritten rules,” but emphasized that “these rules really find their origin in specific provisions of the Constitution viewed in light of our constitutional heritage”. To the extent that judicial independence was entrenched in the Constitution, this was “accomplished… by ss. 99100 of the Constitution Act, 1867, not the preamble”.

Here is the crux of the disagreement. For La Forest J, the written provisions of the Constitution are not incomplete expressions of the underlying principles that animate the Constitution. The express provisions “are the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review”. Why? Because “[j]udicial review… is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument” (emphasis added). 

Justice La Forest’s dissent represents a contrary view on the primacy of the text over unwritten principles. It understands the documents to be the Constitution, whereas the majority seems to understand them to be an imperfect expression of the Constitution’s principles. These are very different ways of understanding the nature of our political community and its fundamental commitments. I don’t think I share Justice La Forest’s view, but it provides a reminder that our Constitutional documents do not come with clear instructions on how they are to be read and what unwritten principles they might include. In this way, La Forest J’s dissent accomplishes, I think, the goals of writing a dissenting view: it challenges its readers to scrutinize their interpretive commitments, which often go unstated.

My students sometimes lament that dissenting views are on the syllabus. But the law is more than a set of normative propositions. The records of legal disagreements give us glimpses at alternate possibilities; they model how a society characterized by deep divisions can rely in part on law to build a life in common.

Day Six: Carissima Mathen

It was a formidable challenge to select only three Supreme Court dissents.  To make the choice more manageable, I decided to stick to Charter case law, and to focus on opinions that I personally found persuasive.  That left out a number of notable opinions, such as William McIntyre’s uncompromising yet necessary challenges to his colleagues during the 1980sThat sort of divergence adds to the jurisprudential project, which regrettably is not always in evidence in many dissents produced today.

In selecting my three opinions, I also thought about the purpose and value of the dissenting voice.  I prioritized the willingness to challenge orthodoxy, to articulate hard truths or to recognize doctrinal deficiencies.  I looked, too, for powerful writing.

A.C. v. Manitoba (Director of Child and Family Services)2009 SCC 30

 In this 2009 case, a 6-1 majority upheld a provincial law that permits judges to order medical treatment for non-consenting minors under the age of 16.  Justice Ian Binnie wrote a dissent.

A.C., a 14-year-old Jehovah’s Witness, refused a life-saving blood transfusion.  Medical experts concluded that she had the requisite capacity to make that decision.  Nonetheless, because the legislation set out more stringent criteria for persons under age of 16, A.C. was administered the transfusion.  She argued that the law violated her Charter rights.

The majority judges determined that it was possible to interpret and apply the legislation in a constitutional manner.  However, on the basis that A.C.’s own situation was moot (since she was no longer in care), none of them pronounced on whether she had been deprived of her Charter rights, or indeed whether someone under the age of 16 could ever refuse life-saving treatment.

Justice Binnie recognized that A.C. sought the freedom to make what most people would view as a terrible mistake. But, if an otherwise capable person has the right to make that choice, on what basis might A.C. be denied?  In Binnie J’s view, the state had not offered any justification for that denial.

In preferring the safer terrain of statutory interpretation, Justice Binnie said, the majority had not actually responded to A.C.’s claim.  The issue was not whether something like a “best interests” test (the focus of much of the majority decision) could be rendered more consistent with the Charter.  The question was whether the state could substitute that test for the wholly different one: whether a person has the capacity to make a particular decision.  If a “mature minor” has that capacity, Binnie J. argued, the basis for applying a best interests test disappears. Consequently, his colleagues had not lived up to the Charter’s promise.  Binnie J. strongly implied that the majority’s reluctance to fully enter into the debate was grounded in both disbelief that anyone would refuse medical care, and suspicion of the faith-based context of A.C.’s choice.  While it is valid to seek to protect children who lack capacity, there is no relationship between that goal and removing the choice from children with capacity.  Thus, the deprivation of A.C.’s section 7 right to direct her own medical treatment was arbitrary.

If the autonomy rights the Charter guarantees are to be meaningful, they cannot be limited to choices that a majority of persons understand and respect.  Justice Binnie’s unstinting embrace of principle makes this one of my favourite dissents.  His approach holds valuable lessons today, as our society confronts difficult questions surrounding medical aid in dying

R v. Hall, 2002 SCC 64

A 2002 case about bail, Hall features a powerful dissent authored by Justice Frank Iacobucci (joined by Major, Arbour and Lebel JJ.)

Section 11(e) of the Charter states inter alia that no person may be denied bail without just cause.  In the 1992 case of R v. Morales, the Supreme Court assessed criminal provisions permitting bail to be denied if “necessary in the public interest”.  A majority found those words vague and, thus, unconstitutional.

Some years later, Parliament amended the law so that even where a flight or public risk is not established, detention is permissible “where [it] is necessary in order to maintain confidence in the administration of justice” considering the strength of the case, gravity and circumstances of the offence, and the potential for a lengthy sentence. The Hall trial judge found that the highly charged aftermath of a murder and the strong evidence underlying the Crown’s case made it necessary to detain the defendant. The Supreme Court upheld that ruling, and the law permitting it, as a rare case in which pre-trial detention on a “tertiary ground” was justified.

Justice Iacobucci’s dissent was excoriating.  He accused the majority of abandoning the presumption of innocence and its concomitant right to liberty.  He took exception to the suggestion that “a well-functioning bail system” requires the occasional power to deny bail for a purpose unrelated to trial attendance or public safety.  He pointed out the pernicious systemic effects of pre-trial detention, such as inducing guilty pleas and inhibiting defendants’ ability to participate in their own defence.

Iacobucci J. was especially disturbed by the idea that confidence in the administration of justice may require detaining someone on the basis of nothing more than (often flawed, even irrational) public sentiment.  In his view, the justice system should educate and protect against such attitudes, not coddle them.  Given the specific context and the values engaged in pre-trial detention, the amended ground for denying bail was equally as deficient as its predecessor.

Hall was issued during the heyday of the idea that Charter rulings are part of a “dialogue” between courts and legislatures (a concept of which I have long been skeptical).  Justice Iacobucci was one of the strongest proponents of dialogue (see, most notably, his decision in Vriend v Alberta).  Yet, giving the dissent special force and resonance, he specifically critiqued the idea that “dialogue” could justify the majority’s approach.  He called Hall an example of “how dialogue can break down”.  Although Parliament purported to respond to Morales, it had not demonstrated due regard for the constitutional standards set out in that case.  It had simply re-issued the “public interest” ground by another name.  By failing in turn to uphold fundamental freedoms and liberty, the Court majority had “transformed dialogue into abdication” and misconceived its role under the Constitution.

Little Sisters Book and Art Emporium v Canada (Little Sisters 2), 2007 SCC 2

My final entry deals with process and litigation.  As I have written elsewhere, the mechanisms by which people ensure the constitutionality of legislation is vital to the rule of law.  Little Sisters 2 powerfully illustrates the troubling thinness of constitutional process.  In addition, its dissent includes a rare and striking mea culpa.

In 2007, the Supreme Court refused to uphold an interim costs award to the Little Sisters Bookstore.   In earlier litigation the bookstore had established long-standing discrimination against it by Canada Customs especially in relation to the LGBT materials it imported.   In a majority opinion written by Ian Binnie, the Court decided against any section 52 remedies.  Relying on government assurances that the regime had been fixed, Justice Binnie issued only declaratory relief under section 24(1) of the Charter.

Believing that it continued to be the subject of discriminatory seizures, Little Sisters launched a new action.  Having already spent hundreds of thousands of dollars, it sought advance costs.  The B.C. Supreme Court awarded them, but on appeal the order was set aside. A majority of the Supreme Court affirmed the latter decision on the basis that the new claim was a fact-based dispute with no broader public interest.

While advance costs do not enjoy unqualified support in the legal community, it is difficult to think of a Charter case in which they would be more justified.  In Little Sisters 2, the strongest advocate for the bookstore turned out to be Justice Binnie.  In his dissent, he implicitly recognized the paucity of his original remedy:

I differ from my colleagues about what is truly at stake in this appeal…  In my view, Little Sisters No. 1 provides more than “important context” [as my colleagues describe it].  The ramifications of that decision go to the heart and soul of the appellant’s present application.  …  This case is not the beginning of a litigation journey.  It is 12 years into it. […]

The present application…comes before us precisely because the appellant says that the Minister’s assurances proved empty in practice, that the systemic abuses established in the earlier litigation have continued, and that (in its view) Canada Customs has shown itself to be unwilling to administer the Customs legislation fairly and without discrimination…  [W]as the Minister as good as his word when his counsel assured the Court that the appropriate reforms had been implemented?

For Justice Binnie, failing to grant Little Sisters advance costs risked putting the state beyond the reach of judicial review.  The public interest lay in having the claim ensue – even if paid for by the State.  It was a refreshing, if belated, acknowledgement of the systemic barriers faced by many constitutional litigants.

 

 

Day Five: Matthew Harrington

Religious dissent

Université de Montréal

One of the most disappointing trends in Supreme Court jurisprudence is the increasing tendency to treat religion as a purely individual, private matter. In hindsight, Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 and Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, which seemed at the time to open up a wide range of new claims based on freedom of religion, appear to have been a short-lived detour. Since those decisions, the Court has had difficulty attempting to define the extent and breadth of religion claims in the public square, especially when those claims involve the rights of religious groups. Three dissents, in particular, show how the Court is moving away from the traditional notion of freedom of religion and slipping into a mindset that privileges irreligion rather than neutrality.

Justice Abella in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

Hutterian Bretheren marks a significant turning point in the Supreme Court’s approach to the protection of religious liberty under Section 2(a) of the Charter.  The case involved a challenge to Alberta’s requirement that persons seeking a driver’s licence submit to having their photo taken. The Wilson Colony objected on the grounds that taking a photo would violate the Second Commandment prohibition on the making of “graven images”. The majority rejected the claim, asserting that the deleterious effects on the Hutterites’ ability to practise their religion were minimal. This is because the law in question did not deprive the Hutterites of a meaningful choice concerning the religious practises at issue.  Instead, all the law did was “impose a cost” on their choice. In a rather shocking passage, the majority then cavalierly asserted that the Hutterites could simply hire people to drive them to doctor’s appointments or contract with commercial trucking firms to transport their supplies and produce.  After all, what was at issue was “not a right, but a privilege”.

In one of two separate dissents, Justice Abella rightly took the majority to task for failing to give adequate respect to the religious interests involved. Abella J rightly chided the majority for failing to adequately balance the competing interests. Her main focus was on the harm to the Hutterite community. She noted that the photo requirement deprived the Wilson Colony of any meaningful choice because it forced them into a position of either giving up their beliefs regarding the Second Commandment or give up the self-sufficiency of the community. In effect, the majority’s solution (“hire drivers”) forced them to abandon their independence. There was no choice: they either violate the Second Commandment and get photos, or violate their beliefs about community independence and hire drivers. Of equal significance was Abella J’s observation that the majority was essentially adopting a hierarchy of law when it described the issuance of driver’s licences as a “privilege”. Abella J rightly noted that Section 1 of the Charter knows no difference between laws that are compulsory and those that merely grant privileges. Thus, she correctly dismissed the suggestion that the government’s granting of a privilege (whatever that is) is somehow subject to some lesser form of scrutiny.

Justice Deschamps in Bruker v Marcovitz, 2007 SCC 54, [2007] 3 SCR 607

Brucker involved a claim for damages by a wife against her husband for his failure to grant her a religious divorce as stipulated in the civil divorce settlement agreement. The Supreme Court dismissed the husband’s religion claim on the grounds that he was being insincere, and that performing the religious act in question would impose only a non-trivial burden upon him.

Justice Deschamps’ dissent begins with the very basic observation that Canadian courts should not be in the business of determining whether religious obligations are valid or not. In this case, Mrs. Bruker was not seeking compensation for an inability to remarry under the civil law; on the contrary, she wanted to be paid for not being able to get a religious marriage. How could a civil court possibly assess damages for not being able to obtain the benefits of a religious rite? Closely related to this point is Deschamps J’s observation that a contract to perform a religious right is no contract at all. This is because a contract in Québec requires that it concern the performance of a “juridical act”, which is effectively something the civil courts can supervise. A religious divorce cannot be a juridical act since the granting of it requires the cooperation of religious authorities over whom the courts have no power.

Justice Deschamps clearly has the better argument, and one that is more consistent with the then-existing precedent. Under any other circumstances, it is hard to imagine a Canadian court requiring a person to take Holy Communion or even say the Lord’s Prayer against his will. After all, in Amselem, the court would not even require the claimant to honour a real estate contract. Yet, here, the court seemed oddly content to penalise a man for not participating in a religious divorce. In order to reach this result, the majority took upon itself to make a judicial determination of what Judaism required in the process of getting a divorce. Justice Deschamps was on firm ground in warning that the courts should stay far away from this type of entanglement.

Justices Côté and Brown in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293

The TWU case may be the most unfortunate decision ever rendered by the Supreme Court. Couched in the language of diversity, the various opinions making up the majority reek of intolerance. It is clear from the outset that seven of the justices have no time for those who hold to the traditional view of marriage, and were willing to constrict the public square in such a way as to evict those who refuse to conform to current notions of equality. As in Bruker, the majority took upon itself to determine the appropriate content of a religious belief or practice.

The dissent by Justices Coté and Brown is an eloquent statement of what true diversity in a multicultural and multi-religious state entails. It reminds us of that real tolerance lies in ensuring that everyone has access to the public square — even those who hold opinions others might find offensive. Brown and Coté JJ correctly point out that a secular state is not one which enforces irreligion, but rather, which permits both the believer and the areligious to go about their business without hindrance or favour from the state. Thus, neither courts nor administrative agencies ought to be concerned with the “public perception” of what freedom of religion entails. On the contrary, the role of courts in these cases is “not to produce social consensus, but to protect the democratic commitment to live together in peace”. The fact that some people are offended by the TWU community’s beliefs should be of no concern to either the Law Society or the courts. The role of government is not to produce social consensus, but to protect the democratic commitment to live together in peace, even with people who have the temerity to hold opinions which we find reprehensible. Consequently, the result in TWU is to drive those who hold unpopular opinions from the public square.

Another significant aspect of the dissent is the criticism of Doré/Loyola framework. While the dissent notes that TWU was not a proper vehicle for reconsidering the Doré, it nonetheless criticised the majority for the deference it showed to the Law Society. In the view of the majority, an administrative decision-maker need only show that its decision “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate”.  This effectively means that Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute. Or, as Côté and Brown JJ noted, “[w]hen push comes to shove, statutory objectives — including, presumably, unconstitutional statutory objectives — trump the [Charter] right”.

Similarly, the dissent rejected the idea that “Charter values” are deserving of independent protection. More importantly, the dissent rightly rejected the idea that Charter values could be used to trump a specific Charter right. The obvious reason for this is that “values” are highly contested, so that allowing judges to decided cases on “shared” or “fundamental” values is an utterly specious exercise. As the dissenters write, “[i]t is therefore not open to the state to impose values that it deems to be ‘shared’ upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values.” One hopes that a future Supreme Court will reconsider and abandon the Doré framework in its entirety, and reverse this intolerant decision.

Day Four: Jonathan Maryniuk

 

I am honoured to be asked to provide three of my favourite Supreme Court of Canada dissents.

I enjoyed reading dissents in my free time even before I was even accepted into law school.  Picture me: I am in the lunchroom at one of my summer warehouse jobs in the middle of the night.  Everyone else is watching Family Guy or doing Sudoku.  And then there is me, alone in the corner, reading and revelling in stacks of paper printouts of SCOTUS dissents from the 2000s (read this fascinating piece behind one of them).  Yes, I was a nerd and a sucker for judicial zingers.

We have been recently been living in a bit of a golden era for dissents.  But to remove any recency bias, I have chosen three of the following Supreme Court of Canada dissents from outside this era.

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 (La Forest J.)

This decision was released just days before Justice La Forest retired.  La Forest’s dissent in this case was a bit of a “mic drop”.

The issue was whether and how s. 11(d) of the Charter protects against a reduction of provincial judge’s salaries because it guarantees those charged with an offence the right to “an independent and impartial tribunal”.

La Forest was, by polite Canadian standards, scathing in addressing the majority’s analysis that the preamble to the 1867 constitution means government cannot interfere with the judiciary.  He called the majority opinion “historical fallacy” (para. 311), “strained” reasoning (para. 322), “made of insubstantial cloth” (para. 313), a “dubious theory of an implicit constitutional structure” (para. 319) and “entirely misapprehends the fundamental nature” of the constitution (para. 318):

The express provisions of the Constitution are not, as the Chief Justice contends, “elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867 ”… On the contrary, they are the Constitution.  To assert otherwise is to subvert the democratic foundation of judicial review. (para. 319)

And if that was not enough, La Forest suggested the Court’s majority opinion hurt the legitimacy of the judiciary itself: the legitimacy of the courts are imperiled “when courts attempt to limit the power of legislatures without recourse to express textual authority” (para. 316):

Given that the express provisions dealing with constitutional protection for judicial independence have specifically spelled out their application, it seems strained to extend the ambit of this protection by reference to a general preambular statement. (para. 322)

On the heels of this, La Forest could not agree that the Charter mandates there be an independent judicial compensation commission to deal with judicial compensation.  “Requiring commissions a priori, however, is tantamount to enacting a new constitutional provision to extend the protection provided by s. 11 (d)” (para. 344).

The opposite is true – that the constitution does not mandate a salary commission for judges –  “because it is grounded in reason and common sense” (para. 334).   To La Forest, the majority’s “result represents a triumph of form over substance” since they acknowledged the government may ignore the commission’s recommendations in some circumstances (para. 343).

La Forest was also highly critical of the Court causing waves without a mandate to do so.  The Court should not “venture forth on this uncharted sea” by making a decision with significant ramifications on an issue “where only the briefest of allusion to the issue was made by counsel” (paras. 301, 324).   The Court in 2018 understood this when it alerted the parties it was potentially reconsidering Dunsmuir.

Overall, La Forest’s language and reasoning makes for a highly readable and compelling dissent.  It is unfortunate we could not get a counter-response to this dissent.

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Abella J./LeBel J.)

Like some others have said, there is a lot to like about Justice Abella and LeBel’s dissenting opinions in this case. Abella wrote separately, and was joined by LeBel, who also wrote separately.

This case upheld the Province of Alberta’s ability to require Hutterites be photographed in order to drive.

Although the tone of Abella’s dissent is relatively demure, there were a few zingers.  Justice Abella took aim at both Chief Justice McLachlin’s majority opinion and the government’s arguments.  Abella said the government’s evidence justifying the infringement wasn’t “anything more than a web of speculation”.

According to Abella, the majority’s “analysis fully flounders” at the proportionately stage of Oakes.  She then offered this devastatingly simple retort:

The fact that Alberta is seemingly unengaged by the impact on identity theft of over 700,000 Albertans being without a driver’s licence, makes it difficult to understand why it feels that the system cannot tolerate 250 or so more exemptions.

In their dissents, Abella and LeBel explicitly recognized the communal and associative nature of religion.  This was something that had been largely absent from freedom of religion jurisprudence.  They rejected the notion that the Hutterites should simply find third party transportation: “This balance cannot be obtained by belittling the impact of the measures on the beliefs and religious practices of the Hutterites and by asking them to rely on taxi drivers and truck rental services to operate their farms and to preserve their way of life” (para. 201, LeBel J.).  The emphasis of community in religion would be later recognized in Loyola, Mounted Police, and (to a degree) TWU.

Justice Abella built off of her dissent in this case in her later dissent in R. v. NS:  “It is unclear to me how a claimant’s ‘strength” of belief…affects the protection a claimant should be afforded under the Charter” (para. 89).  Conversely, Abella appeared to walk back from this in TWU, when she found as part of the majority that exercising a communal right that was a “preferred” practice rather than a “necessary” one means the interference in a right is “limited” (TWU, para. 88).

Abella and LeBel’s dissents expose how easily minority rights can be trampled by tenuous and weak claims by the government that minorities cannot be accommodated.

Dunsmuir v. New Brunswick, 2008 SCC 9 (Binnie J.)

While technically a concurrence, Justice Binnie’s opinion in Dunsmuir is really an alternative approach to the majority’s reimagining of the standard of review.  It is an opinion that has simmered with me ever since the rendering of Dunsmuir caused havoc during my administrative law class.

Citing Romeo and Juliet, Binnie called for a “broader reappraisal” of judicial review than replacing administrative law nomenclature the majority called for:  “Judicial review is an idea that has lately become unduly burdened with law office metaphysics.  We are concerned with substance not nomenclature….Every hour of a lawyer’s preparation and court time devoted to unproductive “lawyer’s talk” poses a significant cost to the applicant. (para. 122, 133).  Binnie later managed to incorporate his “law office metaphysics” line in another case.  It is a great phrase.

Binnie, who was directly appointed to the Supreme Court from being a lawyer, identified a compelling problem that the Court’s recent landmark Vavilov decision admitted (para. 21) that Dunsmuir failed to alleviate.  Lawyers cannot predict the standard of review, which may determine the disposition of a case:

Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied….A victory before the reviewing court may be overturned on appeal because the wrong “standard of review” was selected.  A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome . . . .

As a lawyer, my response to this is an enthusiastic “yes!”. Clients review an administrative decision because they feel a decision-maker got it wrong.  It is difficult to explain to them that their success may hinge on “law office metaphysics”.

Lawyers are preoccupied with arguing “standard of review” and not “on the who, what, why and wherefor of the litigant’s complaint on its merits” (para. 154).

Binnie had proposed a more predictable way of choosing the standard of review than the majority.  He said that reasonableness should be presumed (later adopted in Vavilov), absent a statutory right of appeal or pure question of law or jurisdiction.  As a lawyer, the perspective of lawyers/clients and offering predictability is appreciated.

Binnie also rightly saw what was glaringly missing in the majority’s opinion and what courts have struggled with ever since.  That is, how “reasonableness” review ought to operate and how “court and litigants can plug in the relevant context” into the review (para. 151).  Dunsmuir’s majority opinion is surprisingly scant on this.  Administrative law lawyers have since had a “fun” time extrapolating para. 47 of that opinion.

Binnie fleshed out reasonableness review in a way Dunsmuir’s majority had not.  Although Binnie insisted his approach could be done “without traumatizing the participants” (para. 153), I am not so sure administrative law will ever be trauma-free.