Brian Thompson
Slideshow image

Charter guarantees:

The Canadian Charter of Rights and Freedoms guarantees certain rights and freedoms. These guarantees are for the benefit of an individual against the power of the state and /or an administrative body (the law societies in this instance). The Charter rights are not absolute and they do not guarantee those rights and freedoms absolutely.

An example might be helpful. The Charter guarantees freedom of speech. However, if a kindergarten teacher decides to “educate” the children in his class by swearing at them profusely and teaching them to do the same, every parent would want him to stop and would agree that there are/should be limits to the teacher’s Charter right to free speech.

In our example the teacher’s right to free speech will be limited by his duties and responsibilities as an educator, foisted upon him by common law, the School Act and the Teachers Act. Speech that will be allowed in the classroom will therefore be speech that passes the test of a balance between Charter rights and freedoms on the one hand, and the legal duties and responsibilities of a teacher on the other hand.

Section 1of the Charter puts it like this:

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.

Administrative Bodies:

Administrative bodies cannot pass laws, but since they are created by statute they can make decisions that are binding on those affected by it. In the case we are discussing, the law societies are administrative bodies whose decisions impacted Trinity Western University students and the proposed law school. So, we know that section 1 of the Charter is applicable in this case.

Decision Framework:

Now, we have to keep in mind that our courts do not make every new decision from scratch. They are obligated to follow previous decisions that established precedents. This cumulative process should produce consistency in the judgments and provide a certain level of predictability.

Administrative decisions that engage the Charter are reviewed based on the framework set out in the Supreme Court decisions Doré v. Barreau du Québec (2012) and Loyola High School v. Quebec (2015).

According to these decisions it is (in the words of the majority judges):

If the administrative decision engages the Charter by limiting its protections – both rights and values – the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play and the relevant statutory mandate.

The framework therefore suggests a proportionate balancing of the Charter right (freedom of religion) and the relevant statutory mandate (to regulate the legal profession) exercised by way of an administrative decision (not to accredit the proposed law school).

The Chief Justice breaks the framework down into two steps:

Step 1: The reviewing court must first determine if the decision limits a Charter right, and then

Step 2: determine whether the limitation of the right is proportionate in light of the state’s objective, and hence is justified as a reasonable measure in a free and democratic society under s. 1 of the Charter.

So, how would you balance the Charter protection afforded to TWU students and the administrative decisions made by the two law societies?

Next time we will consider how the majority of the judges balanced the competing rights, freedoms and responsibilities of the parties involved.                                                                                                             By Brian Thompson