Constitutional Forum (Journal)
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“This Charter applies…”: The Supreme Court of Canada’s Fundamental Error in the Trinity Western University decisions
No full textI. IntroductionThere has been an ongoing battle between Trinity Western University and the Federation of Law Societies of Canada — the national organization of the law societies that govern the legal profession in Canada — over whether Canada’s law societies will recognize JDs from the law faculty that Trinity Western wishes to establish. At the heart of this controversy is the fact that Trinity Western University, as an avowedly Christian, and some might say conservative, university, requires all of its faculty, staff, and students to sign a Community Covenant. Among other things, this Community Covenant prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.”1 A student’s failure to comply with the Covenant could result in disciplinary measures, including suspension and possibly expulsion.2 Several law societies, including the Law Society of British Columbia and the (as it was then known) Law Society of Upper Canada, denied accreditation to Trinity Western’s proposed law faculty because of this Community Covenant..
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No full textThis special issue of the Forum is a compilation of papers presented at a panel convened by Debra Parkes,1 two weeks after the release of the Supreme Court’s decision in Fraser v Canada2 on October 16, 2020. It also includes a paper by Richard Moon, as he originally suggested the idea for such a special issue
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No full textAdverse effects discrimination arises when a law that appears to be neutral on its face has a disproportionate and negative impact on members of a group identified by a protected ground.1 The discrimination is usually not as easy to see as it is in cases of direct discrimination, where distinctions are drawn by a law, program, or policy. This may be why Fraser v Canada (Attorney General)2 is only the third adverse effects claim under section 15(1) of the Canadian Charter of Rights and Freedoms3 to succeed since section 15 came into force in 1985.4 Fraser is notable simply because it is the first successful adverse effects claim in twenty-two years.5
1 Jonnette Watson Hamilton & Jennifer Koshan. “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2015) 19:2 Rev Const Stud Studies 191 at 196 [“Adverse Impact”]. 2 2020 SCC 28 [Fraser]. 3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 4 The other two cases in which adverse effects claims were successful were Eldridge v British Columbia, [1997] 3 SCR 624, 151 DLR (4th) 577 [Eldridge cited to SCR] and Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385 [Vriend cited to SCR]. 5 At least five adverse effects claims made under section 15 of the Charter failed in the intervening twentytwo years: Health Services and Support — Facilities Subsector Bargaining Assn v British Columbia, 2007 SC
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No full textVery early in my academic career I wrote two pieces about section 15.1 The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,2 and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.3 When I re-read these pieces recently it struck me that with a few minor updates they could be read as comments on the Court’s recent decision in Fraser v Canada(Attorney General). 4 The same issues and tensions that were there at the beginning of section 15 are still there. They are built into the concept of constructive/effects discrimination and are not about to disappear. Shamelessly, I have reconstituted these two earlier pieces into a comment, of sorts, on the Fraser case. Other contributors in this special issue of the Constitutional Forum have set out the facts of the Fraser case and so I have not done so here.
1 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Richard Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26:4 Osgoode Hall LJ 673.3 Richard Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of British Columbia”(1989) 21:3 Ottawa L Rev 563.4 2020 SCC 28 [Fraser]
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No full textA clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.
1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews]
Are There “Sources of Resilience” When the Separation of Powers Breaks Down?
No full textJacob Levy describes three variants of the separation of powers in the 31st Annual McDonald Lecture in Constitutional Studies, only one of which is germane to this reflection. The first variant he describes is based solely on the independence of the judiciary from both the executive and legislative branches of governments; consequently, this variant encompasses both presidential and parliamentary systems under its conceptual ambit. Another variant, which Levy attributes to Montesquieu, envisages the separation of powers between executive, judicial, and legislative branches as a way of allowing for the “pooled”1 rule of “the one” (i.e. monarch), “the few” (i.e. aristocrats), and “the many” (i.e. the people). Levy also describes a distinctly American variant of the separation of powers undergirded by a system of checks and balances. This variant was designed to ensure “mutual monitoring between executive and legislative”2 and it vests the legislative branch with the power to impeach the executive in order to “maintain effective limits on the political power and the political ambition of the president.”
Toronto\u27s 2018 Municipal Election, Rights of Democratic Participation, and Section 2(b) of the Charter
No full textIn 2018, the City of Toronto’s municipal election overlapped with a provincial election that brought a new government to office. While the municipal election ran for a protracted period from May 1 to October 22, the provincial election began on May 9 and ended about four weeks later, on June 7.1 On July 27, after only a few weeks in office, the provincial government tabled the Better Local Government Act (BLGA) and proclaimed the Bill into law on August 14.2 The BLGA reduced Toronto City Council from 47 to 25 wards and reset the electoral process, mandating that the election proceed under a different concept of representation for City Council.
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No full textOn May 13, 2021, the Government of Quebec introduced Bill 96, “An Act Respecting French, the Official and Common Language of Quebec” in the Quebec National Assembly.1 Bill 96 is a multi-faceted, and fairly sweeping, modernization of the Charter of the French Language, commonly known as Bill 101. It is primarily an attempt to use the power of the state to ensure that French is used more in Quebec, that more Quebecers are educated in French, and that anyone who wants to learn French has access to French lessons.2 As there is some evidence that French is being used less in Quebec than it has been in recent decades, the government wants to act to make French the “common language of Quebec,” as the Bill’s title suggests. While a number of the provisions of Bill 96 may violate the rights of the English-language minority in the province, which is a matter that should be of concern to all Canadians and the Government of Canada, I want to address another issue with the constitutionality of Bill 96.
1 Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, Québec, 2021 (first reading 13 May 2021), online: <www.m.assnat.qc.ca/en/travaux-parlementaires/projets-loi/ projet-loi-96-42-1.html> [An Act Respecting French]. 2 Kate McKenna, “Quebec seeks to change Canadian Constitution, make sweeping changes to language laws with new bill”, CBC News (14 Ma
Bringing the Mixed Constitution Back In
No full textNo doubt exists that the separation of powers is a fundamental architectural principle in Canadian public law jurisprudence. But what about the idea of a mixed constitution? A simple CanLII search for “mixed constitution” turns up six cases. In five1 of these cases, the search reveals the following phrases: “pre-mix constituted goods,” “the mix constituting the excavated material,” “the Owners’ mixes constitute ‘bread and rolls’,” “the improper mixing constituted a fraudulent misrepresentation,” and “quality control for the asphalt mix constituted.” Clearly baking and aggregate blends figure largely in constituted mixes, but the constitutional jurisprudential sense is largely absent. That said, concerns about pre-mixing, constituted goods, excavating, improper mixing, and quality control do have some salience for the discussion that follows
The Conscientious Objection of Medical Practitioners to the CPSO’s “Effective Referral” Requirement
No full textThe term “conscience” is used in two different ways in discussions about religious freedom. Sometimes, conscience is contrasted with religion. Freedom of conscience, in contrast to freedom of religion, is concerned with the protection of fundamental beliefs or commitments that are not part of a religious or spiritual system.1 Together, freedom of conscience and freedom of religion protect the individual’s most fundamental moral beliefs or commitments.2
Other times, though, the term “conscience” refers to a particular kind of accommodation claim. In most religious accommodation cases, an individual or group seeks to be exempted from a law that prevents them from engaging in a religious practice — for example, from wearing religious dress or keeping religious holidays. In conscientious objection cases, how- ever, the individual asks to be exempted from a law that requires them to perform an act that they regard as immoral or sinful. In many of these cases the claimant asks to be excused from performing an act that is not itself immoral, but supports or facilitates what they see as the immoral action of others, and so makes them complicit in this immorality. In this comment I will focus on this second use of the term conscience, and more particularly the conscientious objection claim made by some medical practitioners in Ontario to the requirement that they provide an effective referral to another doctor when they are unwilling, for moral or religious reasons, to perform a particular medical procedure(...)
1 The term “freedom of conscience” was once used interchangeably with freedom of religion to refer to an individual’s freedom to hold beliefs that were spiritual or moral in At this earlier time the moral beliefs of most individuals were rooted in a religious system. Freedom of conscience, though, is now viewed as an alternative to, or extension of, freedom of religion.2 However, as I have argued elsewhere, the conscience part of section 2(a) is seldom raised before the courts and may have very little practical See Richard Moon, “Conscience in the Image of Religion” in John Adenitire, ed, Religious Beliefs and Conscientious Exemptions in a Liberal State (Oxford: Hart, 2019) 73