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The Charter Circle Game

Some argue the Supreme Court left the Charter a wreck and a tangle with last week’s Trinity Western decision. But our Editor in Chief Father Raymond de Souza has a former Justice tell him it’s all part of making equality Canada’s concentric centre.

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Topics: Law, Religious Freedom
The Charter Circle Game June 21, 2018  |  By Raymond J. de Souza
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A Supreme Court Justice told me how the Trinity Western law school case was going to turn out. So, while very disappointed, I was not entirely surprised by last Friday’s verdict. 

Convivium writers more learned in the law than I will explain in due course what specifically all this will mean. Our publisher Peter Stockland last week highlighted what was at stake. I might simply recall here how we got to where we are. And I know, because a Supreme Court Justice told me. 

Not one currently on the Court, for that would be improper. And he did not tell me privately, otherwise I would be violating confidences to report it here. It was Justice Louis LeBel, who retired from the Supreme Court in 2015, when he answered a question I put to him at an academic conference. 

First some background. The Canadian Charter is not like other historic declarations of rights. It was passed only recently, in 1982, and so it is not the broad sweeping document that one might expect that asserts the rights of a free people. It was added to the Constitution of a country already 115 years old, with quite a bit of constitutional history behind it. It also was written in the era of a large State, with all the attendant legal complexity that brings. Thus, the Charter is rather full of limiting clauses, and explanatory bits, and technical clarifications. 

For example, section 6 deals with mobility rights, which are so important to the national union that they come before “life, liberty and security of the person” in section 7. Section 6 begins clearly enough, simply stating that “every citizen of Canada has the right to enter, remain in and leave Canada” and “every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province.”

That a bit of a mouthful but seems clear enough. Canadians can live where they like. But hang on, what about my government health insurance? That’s covered down in Section 6.3b: “the rights specified … are subject to … any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.”

It doesn’t sing, but it does mean that provinces are permitted to make you wait a few months before qualifying for medicare.

Not so fast. What about “affirmative action” – as the charter put it in 1982, using language that everyone stopped using by the time the Charter was two decades old?

Section 6.4 includes this helpful clarification: “Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who were socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.”

Talk about Canadian exceptionalism! What other Charter includes comparative rates of unemployment?

The Supreme Court found that the religious liberty of Trinity Western University was violated when professional associations of lawyers refused to accredit it because of its religious beliefs and practices. That is a violation of those “fundamental freedoms” listed in Section 2. Indeed, “freedom of conscience and religion” is first on the list.

But there is the qualifying, limiting language of Section 1: “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.”

So, if the Court thinks that parliament – or in this case a professional association of lawyers – limits your rights in a reasonable and justified way, then the Charter is cool with that. 

It seems, though, that with all the rights in the Charter, and all the attendant limitations and modifications and exemptions, there must be some ranking of rights in order to figure it all out. For example, if the fundamental freedom of religion at the top of Section 2 comes into apparent conflict with equality rights down in Section 15, what is to be done?

That’s the question I put to Justice LeBel in 2015. Convivium’s friend Douglas Farrow had convened at McGill University a conference on “Religion & Conscience in Court.” Where did freedom of religion and conscience stand after the Loyola decision on religious freedom in education and the Carter decision on assisted suicide? Professor Farrow invited Justice Louis LeBel to address the conference. LeBel had signed both Loyola and Carter before retiring from the Court in the summer of 2015. He thus was free to speak about how the Court went about its work.

In my own remarks on a panel with LeBel, I observed that freedom of conscience and religion were the first freedoms listed in the Charter and therefore required special attention. In response, LeBel noted that there was no “hierarchy of rights” provided by the Charter itself. That itself ignores that the Charter begins by enumerating “fundamental freedoms.” If all freedoms are equal, or at least no freedoms are more equal than others, why bother calling some of them “fundamental”? 

Nevertheless, LeBel explained that while there was no hierarchy of rights, over time certain rights had emerged as more central or more important in the Court’s jurisprudence. So, while LeBel rejected the idea that there might be a vertical ordering of rights, with some higher and some lower, he proposed a concentric ordering of rights, with some more central and some less so.

I asked Justice LeBel if he might indicate what was more central in his non-hierarchical hierarchy of rights. He was good enough to answer. 

“The right to equal treatment,” he explained, referring to Section 15 of the Charter, was the most central. He added two others: “The right to be treated with respect, and the right to participation in society.”

The primacy of equality rights means that in conflicts, real or apparent, between equality rights and fundamental freedoms, including religion and conscience, the equality right wins. That’s exactly why the Court ruled against TWU. LeBel told us, in so many words, that it would.

The other two rights – to be treated with respect and to participate in society – are remarkable because they do not appear in the Charter at all. Yet LeBel, fresh off the court, argued that they are more important – pardon me, more “central” – than the actual rights in the Charter itself. 

Trinity’s law school case is not the first to demonstrate that equality rights are at the centre of the circle, while religious freedom revolves in the outer orbit. But it is the clearest demonstration to date. All that’s left in future cases is to determine how long the radius is from the inner circle of equality to the outer circumference where religious liberty now resides.


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