Exercise on Constitutional Law

Question One

There has been a great deal of tension during the Ontario Albion University's Religious Tolerance
Week. Instead of fostering religious tolerance, various student groups, affiliated with particular
religious groups, have been protesting the presence of certain guest speakers and the situation
seems to be getting out of hand. The Albion University Board of Governors feels that the protests
will eventually lead to violence. With regret, the Board of Governors decides to pass a University
by-law (passed pursuant to by-law powers contained within the Ontario Albion University Act) to
protect the religious sensibilities of various students. The University Board of Governors at Albion
University are appointed by the provincial Lieutenant Governor to ensure that the province's post-
secondary education objectives are met.

The by-law purports to prohibit all forms of "speech that may upset members of an identifiable
religious group" from public areas specifically Including the campus's shopping mall and the
campus bus terminal.

A group of student provocateurs decide to dress up as "Interstellar Knights" from the fictitious
"Galactic Wars" film franchise. They staged a number of Incidents in which they handed out
pamphlets to many students in the campus shopping mall and the bus station claiming that "The
FORCE was the only true way to enlightenment. The University received a couple of complaints
from the original student protestors.

The students were taken by campus police to the Board of Governors of the University and were
threatened with academic suspension. The "Interstellar Knights claim that the Interstellar Knights
religion has been recognized (certain countries, such as Britain, include Interstellar Knight as a
potential religious choice on the long form census and 6% of the UK population claimed to be
Interstellar In the last census) and that their freedom of religion and their freedom of expression
rights have been unconstitutionally infringed.

Please explain in detail whether the Interstellar Knights have a valid constitutional claim that their
Charter rights have been infringed.

Answer

First Issue

Issue

a. Whether Interstellar Knights have a valid constitutional claim of freedom of expression?

Whether there has been an infringement of their freedom of expression?

Rules

- Section 2(b) (Freedom of Expression) It says that everyone has the fundamental freedom of
thought, belief, opinion and expression including freedom of the press and other media of
communication.
- Threshold Test laid down in Irwin Toy Ltd. v. Quebec

Analysis

- Does the Charter apply?

The Charter applies when the infringing party is the government or government agent. In the instant
case, The University Board of Governors at Albion University are appointed by the provincial
Lieutenant Governor, which shows the control of the government in the functioning of the university.
Thus, it can be deduced that, the Charter applies to the University as it is an agent of the
Government.

- Is the activity an expression?

Section 2(b) is a broadly protected right in Canada. It protects any activity that conveys, or attempts
to convey a meaning. This covers a very wide scope, including for example speaking, writing, artwork,
dancing, clothing choices and tattoos. Actions without words can still amount to expression such as
pornography and hate speech. The only exception to this freedom is that, if an activity that takes the
form of violence will not be protected. For instances, terrorism which mainly comes from religious
beliefs will not be protected. (The Attorney General of Quebec v. Irwin Toy Limited)

Expression has been recognised around the world as inherent to democratic systems of government.
Everyone has equal voice in democracy. This also includes power to criticise the institutions that hold
power.

As per R v. Keegstra, the SC set three values of Section 2(b), namely, (i) seeking and obtaining truth;
(ii) participation in social and political making and (iii) individual’s self fulfilment and human
flourishing. In Local 558 v. Pepsi Cola Canada Beverages, the SC said the core values include self-
fulfilment, participation in social and political making and communal exchange in ideas. Free speech
protects human dignity and the right to think and reflect freely on one’s circumstances and
condition. It allows a person to speak not only for the sake of expression itself but to advocate
change and attempt to persuade others in changing ones life.

In the instant case, the activity demanding freedom of expression is the pamphlets that were
distributed by group of student provocateurs claiming that, the “force was the only true way of
enlightenment”. This activity along with other incidents, including their clothing, that they staged
resulted in receipt of complaints from protesters can be construed as a threat to violence. Thus, this
activity is not protected under Section 2(b).

- Does the law or action have the purpose of effect of limiting a person freedom of expression?

To determine, if there is an infringement of a person’s freedom of expression, the court distinguishes

between content based limitation and effect based limitation.

(a) Content Based Limitation: This limitation is aimed at the content of what is being said or
done. The purpose is to limit the communication of specific content.
(b) Effect Based Limitation: This limitation is aimed at another aspect of the activity. This is not
intended to limit the right but they have an effect on someone’s ability of expression. To
claim, it must be shown it clearly restrict an underlying value of freedom of expression,
thereby restricting market place of ideas, political debate, self-fulfilment and human
flourishing.

In the instant case, by-law purports to prohibit all forms of "speech that may upset members of an
identifiable religious group" from public areas specifically Including the campus's shopping mall and
the campus bus terminal. This limitation can be construed as content based limitation as it limits the
forms of specific kind of speech that affects an identifiable religious group in public area.
The incidents staged by students who dressed up as "Interstellar Knights" from the fictitious "Galactic
Wars" film franchise. Subsequently, they were taken by campus police to the Board of Governors of
the University and were threatened with academic suspension. This can also be construed as content
based limitation since it directly restricted the expression, i.e., clothing and other ancillary
expression.

The effect based limitation does not apply in this case.

Threshold Test (The Attorney General of Quebec v. Irwin Toy Limited)

Step One

(a) Content: Is there an attempt to convey meaning?

This means that, the activity needs to be prima facie within the scope of Section 2(b). The
protection is content-independent and includes messages that are unpopular and distasteful.
Content can be conveyed through an infinite variety of forms of expression such as written,
spoken, arts etc.

It has already been established above the extent to which activity conveys meaning.

(b) Form: Is the activity in a protected form (method and location) or does the method or
location of this expression remove that protection?
- As already mentioned, violence is a form of expression is not protected. If there no violence,
then the analysis can get through the first part of form to location. It has already been
established that, both activities raised the threat of violence.
- Is the location a permissible one? To answer this question, one must consider whether the
location is one where free speech has traditionally been practiced. There is no protection if
the location is private property. If the property is public and has been traditionally used for
public expression, then it is protected.
In the instant case, assuming that both activities had the protection conferred by Section
2(b), then the second point would have been satisfied.

Step Two

- Does the purpose or effect of the impugned governmental action restrict attempts to convey
meaning through that activity ?
For answering this question, one has to look through (a) Purpose (assessed from the
standpoint of the guarantee in question) and (b) Effect (the law looks neutral but may limit
expression)
The law’s main purpose was to contain the violence in the public areas of the university and
prevent the situation to go out of hand. There is a reasonable belief that the protests will
ultimately lead to acts of violence. The act was enacted to protect the religious sensibilities
of various students.
If the law had not been passed, then the students could have incited violence in all the public
areas. The law does not limit or restrict any form of protected expression. Thus this law is
valid.

Conclusion
In my opinion, the Interstellar Knights do not have a valid constitutional claim of freedom of
expression, and thus the law passed by the University is a valid exercise. Since the expression is not
protected by Section 2(b), the government action in question does not infringe that protection either
in purpose or in effect. (Canadian Broadcasting Corp v. Canada (Attorney General), (Montreal (City) v.
2952-1366 Quebec Inc. )

Second Issue

Issue

a. Whether Interstellar Knights have a valid constitutional claim of freedom of religion?

Whether there has been an infringement of their freedom of religion?

Rule

Section 2(a) protects both religious freedoms and freedom of conscience i.e., beliefs that are not
centred around a god or diety. Everyone has the right to conscience and religion.

Protected religious practice as defined in Syndicat Northcrest Amselem

Two stage process laid down in R v. Big Mart

Test for infringement of religion was laid down in Alberta v. Hutterian Brethren of Wilson Colony

Analysis

Test for infringement of religion was established in Alberta v. Hutterian Brethren of Wilson Colony:

a. There ought to be a sincere belief with a nexus or religion. It is a subjective test. All that is
required is that belief is sincerely held and connected to religion.
b. The interference is more than trivial or substantial. It is an objective standard. A person
cannot claim that they feel that the right has been interfered with. There has to objective
proof that the government is interfering with their right in a way that is more than trivial or
substantial.

- Is there a sincere religious belief that has a nexus with the religion?

In the case of Syndicat Northcrest Amsele, it was stated that religion typically involves a particular
and comprehensive system of faith and worship. In essence, religion is about freely and deeply held
personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to his
or her self-definition and spiritual fulfilment, the practices of which allow individuals to foster a
connection with the divine or with the subject or object of that spiritual faith.

For the majority, Iacobucci J defined protected religious practice as:

- The practice need not be a part of an established belief system, or even a belief system
shared by some other. It can be unique to the claimant.
- It need not to be perceived as obligatory by the claimant. “Voluntary expressions of faith”
are equally protected.
- All that is necessary to qualify a practice for Charter protection was that the claimant
sincerely believed that the practice is of “religious significance”.
- The test is purely subjective.
In the case of R v. Big Mart, it was established that for identifying a violation of Section 2(a), a two
stage process has been identified:

a. They are sincere in their belief

b. They must show that they have a practice/belief, having nexus with religion (subjectively)

In the instant case, the Interstellar were sincere in their belief. They claim that their religion has been
recognised. 6 % of the UK population claims to have adopted the faith of Interstellar Knights. This
subjective criteria has been met since their clothing and the incidents that they staged exhibited
faith. This belief is unique to the group of students and does not seem to be a part of an established
belief system in Canada.

- Is there an obligation of the State to be neutral?

In Mouvement Laique Quebecois v. Saguenay, it was held that, the state has a duty of neutrality. It
means that a state authority could not make use of its powers to promote or impose a religious
belief. In this case, it was held that the prayer expressed universal values and could not be identified
with any particular religion, so it did not affect the state’s neutrality. The Court concluded that the
complainant had not been discriminated against. It is the state’s duty to protect every person’s
freedom of conscience and religion. It may not use its powers in such a way as to promote the
participation of certain believers or non believers in public life to the detriment of others. It is
prohibited from adhering to one religion to the exclusion of all others.

In this case, the University did not favour the practice of Interstellar Knights. Thus, it can be
construed that University was not neutral and could have promoted universal values.

- Is the interference trivial or substantial ?

In the instant case, the students were taken by campus police to the Board of Governors of the
University and were threatened with academic suspension. This threat of academic suspension and
actions taken by the campus police can be construed as a substantial interreference on the freedom
of religion of the Interstellar Knights.

Conclusion

To conclude, I am of the opinion that, Interstellar Knights had a valid constitutional claim of freedom
of religion and there was a substantial interference of this right by the University, which is an agent
of the government.

Question Two

Fiona Gallagher recently lost her job as a telephone marketer when a Burnaby call centre closed
down. Fiona’s common law partner, Steve McBride, works full-time at a grocery store. Over the
past three years, Fiona had been working part-time due to the fact that she is the primary
caregiver to the couple’s two children, aged 3 and 5. Her work at the call centre was also “on-call.”
Her child care responsibilities at home meant that she occasionally had to turn down work when
she was unable to arrange child care.

Fiona, who had amassed 655 hours of employed work over the past year, applied for EI benefits,
but was turned down on the basis of section 5 of the Employment Insurance Act which provides: 5.
An insured person qualifies for unemployment benefits under this Act if the person has worked a
minimum of 700 hours in the year preceding the cessation of his or her employment. There is
Canadian statistical evidence to show that:
● Under the 700 hour formula, approximately 52% of part-time workers are eligible for EI benefits,
whereas 88% of full-time workers are eligible for EI benefits.

● 95% of mothers have primary child care responsibilities for their children;

● Women constitute approximately 75% of the part-time labour force;

● Women spend an average of 2.8 hours per day on paid work and 4.4 hours per day on unpaid
work; men spend an average of 4.5 hours per day on paid work and 2.7 hours per day on unpaid
work; and

The Employment Insurance regime has not always used the hourly formula currently found in
section 5 of the Act. Before 2016, the Act employed a weekly formula. A claimant needed to work
at least 20 weeks with a minimum of 15 hours per week in order to qualify for EI benefits.

The 2016 changes to the Employment Insurance Act were prompted by years of budget deficits at
the federal level, combined with a growing concern among some Canadians that unemployment
insurance was undermining the incentive to work. A 2015 government report noted:

Between 2000 and 2015, costs [of EI] doubled from $10 billion to $20 billion. There was evidence of
growing long-term dependence as the number of people who collect benefits repeatedly year after
year increased from 15% in 1995 to 40% of EI clients in 2015. There was also a recognition that
long term unemployment was becoming more prevalent. Structural changes to the labour market
had permanently changed the skills and abilities needed to find and keep a job in the 21st century.
Finally, research suggested that the program was helping to create a cycle of dependency which
was not only economically disadvantageous to individuals but also damaging to Canadian society.

Fiona has read the statistics set out above and has realized that the hours-based system tends to
exclude more women than men. Since the average man spends almost a third more hours each
year in paid employment than the average woman, an eligibility requirement based solely on total
hours of paid employment in a year is more easily met by workers who are men because they tend
to have more hours available for paid employment.

Fiona is dismayed when she realizes that she would have qualified under the pre-2016 Act. She is
frustrated that the new law disadvantages part-time workers and she thinks it sends a message
that women’s unpaid work in the home is not valuable.

Fiona has come to you, an expert in constitutional law, to find out whether she has a valid claim
that s. 5 of the Employment Insurance Act violates her right to equality guaranteed by s. 15 of the
Canadian Charter of Rights and Freedoms.

Please provide Fiona with your opinion as to how she should present her s. 15 claim, what
arguments she is likely to face, and how a court is likely to decide the s. 15 claim. Do not discuss s.1
or the remedy that she may claim.

Answer

Issues

Whether Fiona has a right to equality? Whether Section 5 of the Employment Insurance Act violates
her right to equality guaranteed by Section 15 of the Canadian Charter of Rights and Freedoms?

Rules
Section 15(1) of the Canadian Charter of Rights and Freedoms

Two step test in Andrews v. Law Society of British Columbia

Four Factor analysis in Section 15(1) analysis in Law v. Canada

Analysis

Equality includes the notion that every individual person is entitled to basic human dignity and
respect. There are four types of equalities under Section 15, namely:

a. Equal before law

b. Equal under the law (“Under the law” requires that any infringement be by “law”)
c. Equal protection of the law
d. Equal benefit of the law

Andrews Test

Step One : Does the law make a distinction based on enumerated or analogous grounds?

- Discrimination based on sex

Section 15 (1) contains nine enumerated grounds, including sex. In this case, the discrimination is
based on sex. The analogous grounds do not apply here. Under Section 5 of the Employment
Insurance Act, a person is required to work for a minimum 700 hours in the year preceding the
cessation of his or her employment. The statistical evidence shows that, only 52% of part-time
workers are eligible for EI benefits. The percentage of full-time workers who are eligible for EI
benefits is much higher in comparison to the percentage of part time worker. Further, statistics also
show that women constitute around 75% of the part-time labour force in comparison to men. This
shows that, Section 5 of the EI Act discriminates women who work part time in comparison with men
who work part time.

The impact of any law is important as opposed the intention of the government. In the instant case,
the purpose of the law was to ensure that unemployment insurance must not undermine the
incentive to work. In 2015, prior to the enactment of the EI Act, the government also recognised that
this law was timely as the long-term unemployment was becoming more relevant. These structural
changes over time, i.e., number of people who collected benefits year after year increased from 15%
in 1995 to 40% in 2015 had impacted labour market. These changed the skills and abilities needed to
find and keep a job in the 21st century. The program helped to create a cycle of dependency which
was not only economically disadvantageous to individuals but also damaging to Canadian society.

The impact of the law is that, the hours-based system tends to exclude more women than men. An
average man spends almost a third more hours each year in paid employment than average woman.
The eligibility requirement based solely on total hours of paid employment in a year is more easily
met by workers who are men because they tend to have more hours available for paid employment.

Step Two: If so, is the discrimination established by showing that the distinction creates a
disadvantage by perpetuating prejudice or stereotype?

In Andrews, the court said that discrimination that creates a prejudice is not sufficient to bring about
an infringement of a person’s equality rights. It must also be demonstrated that this discrimination
creates a disadvantage by perpetuating a prejudice or stereotype. This is the first equality case
decided under the Charter. The court defined equality as a comparative concept. It is a condition of
which may only be attained or discerned by comparison with the condition of others in the social and
political setting in which the question arises. It must be recognised at once. However, that very
difference in treatment between individuals under the law will necessarily result in inequality and
identical treatment may frequently produce serious inequality.

In this case, about 95% of mothers have primary child care responsibilities for their children. In
comparison to their men counterparts who work full time, women have to work part time since they
act as primary caregivers to their children. In this case, Fiona's child care responsibilities at home
meant that she occasionally had to turn down work when she was unable to arrange child care. This
puts women and specially mothers at a disadvantageous position by perpetuating a stereotype of
traditional gender roles. This impact of law has resulted in inequality.

The court in Andrews also described discrimination as a distinction, whether intentional or not 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 upon
others, or which withholds or limits access to opportunities, benefits and advantages available to
other members of society. Distinctions based on personal characteristics attributed to an individual
solely on the basis of association with a group will rarely escape the charge of discrimination, while
those based on an individual’s merits and capabilities will rarely be so classed.

There was shift in the employment insurance regime from weekly formulae to hourly formula. Under
the hourly formula, the claimant needed to work at least 20 weeks with a minimum of 15 hours per
week in order to qualify for EI benefits. The changes in 2016 were prompted by years of budget
deficits. Fiona would have qualified under the pre 2016 Act. The new law disadvantages part time
workers and thinks that it sends a message that women's unpaid work in the home is not valuable.
This withholds women who work part time from accessing the benefits of employment insurance
that is otherwise available to the men.

The burden of proving the infringement lies with Fiona.

Four Factor helpful in Section 15(1) analysis in Law v. Canada

a. Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the

individual or group at issue.

The effects of a law as they relate to the important purpose of s. 15(1) in protecting
individuals or groups who are vulnerable, disadvantaged, or members of “discrete and
insular minorities” should always be a central consideration. Although the claimant’s
association with a historically more advantaged or disadvantaged group or groups is not per
se determinative of an infringement, the existence of these pre-existing factors will favour a
finding that s. 15(1) has been infringed.

The law has an unequal impact on the women who work part time and contribute more to
child care responsibilities.

b. The correspondence, or lack thereof, between the ground or grounds on which the claim is
based and the actual need, capacity, or circumstances of the claimant or others.

Although the mere fact that the impugned legislation takes into account the claimant’s traits
or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally
 be more difficult to establish discrimination to the extent that the law takes into account the
claimant’s actual situation in a manner that respects his or her value as a human being or
member of Canadian society, and less difficult to do so where the law fails to take into
account the claimant’s actual situation.

The hours-based system tends to exclude more women than men. Since the average man
spends almost a third more hours each year in paid employment than the average woman,
an eligibility requirement based solely on total hours of paid employment in a year is more
easily met by workers who are men because they tend to have more hours available for paid
employment.

c. The ameliorative purpose or effects of the impugned law upon a more disadvantaged person
or group in society.

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter
will likely not violate the human dignity of more advantaged individuals where the exclusion
of these more advantaged individuals largely corresponds to the greater need or the
different circumstances experienced by the disadvantaged group being targeted by the
legislation. This factor is more relevant where the s. 15(1) claim is brought by a more
advantaged member of society.

There is no ameliorative purpose of effects of the impugned law on women who have been
working part time.

d. The nature and scope of the interest affected by the impugned law

The more severe and localized the consequences of the legislation for the affected group, the
more likely that the differential treatment responsible for these consequences is
discriminatory within the meaning of s. 15(1).

In Withler v. Canada, it was held that the plaintiff failed to prove that they suffered from pre-existing
disadvantage, stereotyping, prejudice or vulnerability based on their economic well being. It was
found that the legislative scheme as a whole accounted for each claimant need for a continued
income stream and life insurance at the time of a spouse’s death. It was found that the differential
treatment did not discriminate or disadvantage. The appellants were not treated unfairly. They were
given more than what they needed to cover all expense even though it was not as much as other
people get. Equality does not mean we all get the exact amount. Equality means we all get the same
opportunity.

In Fraser v. Canada, the SC stated that to prove a prima facie violation of Section 15(1), a claimant
must show that the impugned law or state action in how it is written, or its actual impact creates a
distinction based on a enumerated or analogous grounds and imposed a burden or denies a benefit
that makes the disadvantage worse. The claimants claimed that their ineligibility for full pension
credits infringed their Section 15 rights as it mainly affects women. The majority in the SC highlighted
that there must be more awareness of adverse impact discrimination. The government must be
more aware of the impact of their policies. The court applied Andrews test and concluded that (a)
women are mainly enrolled in this program and were disadvantaged when it came to balancing
profession, work and childcare and (b) majority held that the inability of them to receive their
pension credits further worsened their inequality and it was not fair to the women in this programs.
Conclusion

In my opinion, Fiona has a valid claim on right to equality and the EI Act passed in 2016 violated her
right to equality.