Hutterian Brethen and the Supreme Court of Canada – One Lawyer’s Story

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21st Sep 2010

This is one lawyer’s story and general observations about his journey to the Supreme Court of Canada.

It is intended to be a non-technical recounting of the law, the process and anecdotes about the experience. Lawyers and academics looking for legal insights in these articles will be disappointed since there are none. However, I hope these articles will be informative for the average Canadian interested in a non-technical discussion of the legal process involved in a constitutional challenge taken to the Supreme Court of Canada.

My articles will be divided as follows:

Article 1. The Canadian Charter of Rights: The constitutional background and how a Charter of Rights argument works. This article will be limited to the freedom of religion (s. 2 (a) of the Charter) portion of the argument, although the Hutterian Brethren case originally included an equality argument (s. 15 (1) of the Charter).

Article 2. Level 1 – Alberta Court of Queen’s Bench: A discussion of the preparation required, the legal analysis required (the “Oakes test”) and the decision at the first level of court.

Article 3. Level 2 – Alberta Court of Appeal: A discussion of the legal analysis at the appeal level and the decision at the Provincial appeal level of court.

Article 4. Level 3 – Supreme Court of Canada: A discussion of the decision at the final level of court, including a recap and analysis of how the Supreme Court of Canada viewed the facts and merits of the argument of the Hutterian Brethren. At the writing of this article (January 19, 2009, the Supreme Court of Canada had not yet handed down its decision). This decision will be significant since the Supreme Court of Canada does not grant leave to appeal unless there is an issue of national importance that has not yet been decided or that requires clarification by the Supreme Court. New law will be set, it is not just a matter of whether the Alberta courts were right or wrong.

ARTICLE 1. THE CANADIAN CHARTER OF RIGHTS

The Canadian Charter of Rights is included in the Constitution Act, 1982 which forms part of the framework that makes up what we consider to be the Canadian Constitution.

Most Canadians are familiar with the Constitution of the US which contains ringing words of independence and declarations of rights that form the basis upon which US society is built. Due to the gradual process from colony to nation, Canada has no single document that sets out our constitutional rights. In 1867 when Canada became a nation, many of the legislative and constitutional powers remained in the UK. Even the patriation of the Canadian Constitution in 1982 required the passage of the Canada Act 1982, a statute of the United Kingdom Parliament which terminated its authority over Canada. Until that time, legally, the United Kingdom Parliament technically remained the ultimate source of legislative competence for many areas of Canadian law. Appeals to the Judicial Committee of the Privy Council in the UK from the Supreme Court of Canada were not abolished until 1949, and unlike the US Supreme Court, the Supreme Court of Canada even now is not established in our constitutional documents and remains the creation of a federal statute.

What makes a study of the Constitution of Canada difficult for lawyers and non-lawyers alike is this fact that it is not comprised of a single over arching document. Rather, the Constitution of Canada arises from a number of different documents and sources. Although the Constitution Act, 1982 defines the phrase “Constitution of Canada”, the definition makes reference to a list of 30 instruments that are “included” in the definition. As stated by the leading Canadian constitutional textbook, the history of Canada and the rules established by the courts means that the constitutional rules which comprise the Constitution of Canada are not readily accessible to non-lawyers and have to be hunted down in a variety of places. (Hogg on Constitutional Law, Thompson Carswell).

Constitution in 1982. The Charter is included as Part I of the Constitution Act, 1982 so therefore, is entrenched as the supreme law of the land as part of the Constitution of Canada.

The significance of being part of the Constitution and therefore “entrenched” means that the Charter sits above all laws of the land, whether they be federal or provincial, statutory or common law (that is made by court cases). Although many of the provinces and the federal government have legislation setting out a Bill of Rights, that legislation is merely a statutory instrument that does not override other statutes. The Canadian Bill of Rights, which still exists as a federal statute, was generally viewed as being an unsatisfactory instrument since it had to be interpreted as merely one piece of legislation with the same standing as any other piece of legislation. Oftentimes, conflicts between the Canadian Bill of Rights and other law were construed in favour of that other law, even though there was an infringement of a party’s rights under the Bill of Rights.

The Charter of Rights is different. As the supreme law of the land, any conflict between rights guaranteed by the Charter and any non-constitutional law (statutory or common law) will be interpreted in favour of the Charter rights and the other law will be held to be unconstitutional. A finding by a court that a law is unconstitutional will usually result in that law being of no force and effect, although there are a number of options which result effectively in granting a constitutional exemption to the party whose Charter rights have been infringed. What a constitutional exemption means is that the law infringing the Charter rights will still be valid, but it will not apply to the party whose Charter rights have been infringed. Constitutional exemptions are rarely granted by courts.

The Charter sets out both the rights it guarantees as well as a mechanism by which those guaranteed Charter rights can be overridden. Therefore, although the Charter guarantees certain rights, those rights are not absolute and the Charter itself sets out the mechanism by which these guaranteed rights can be overridden.

These articles only deals with the freedom of religion, which is contained in s. 2(a) of the Charter which reads:

Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;

The override provision is contained in Section 1 of the Charter which reads as follows:

Guarantee of Rights and Freedoms

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.

There is another override provision in s. 33 of the Charter that is the so-called “notwithstanding clause” which allows a federal or provincial government to pass legislation that specifically overrides certain, but not all, of the Charter rights. Seldom used, these articles will not deal with s. 33 since it was not relevant to the Hutterian Brethren’s journey to the Supreme Court of Canada.

It is up to the party who claims that their guaranteed Charter right of freedom of religion has been infringed to prove the infringement. A recent case of the Supreme Court of Canada means that this proof is on a balance of probabilities, or generally speaking, more probable than not.

If the party claiming an infringement of their right of freedom of religion proves its case on a balance of probabilities, then the onus shifts to the party passing the law to prove, again on a balance of probabilities, that the infringement is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. If the party passing the law fails in satisfying this onus, the law is unconstitutional.

So this sets the stage for the journey through the Canadian court system of a constitutional case involving freedom of religion.

In the next article, I will discuss the preparation for setting up the case, the general legal analysis required for a constitutional question (called the Oakes test), as well as a discussion of the decision of the Alberta Court of Queen’s Bench. Since the case is still before the Supreme Court of Canada, I will not be able to get into any of the merits of the case so the discussion will be general in nature. Once the Supreme Court of Canada hands down its decision, I will then be able to discuss some of the merits and how the Supreme Court of Canada ultimately decided the case based on the facts and merits presented by this case.

To be continued.

K. Gregory Senda

K. Gregory Senda
Peterson & Purvis LLP
537 – 7th Street South, T1J 2G8
P.O. Box 1165, T1J 4A4
Lethbridge, Alberta, Canada
Telephone (403) 328-9667 Fax (403) 381-8822
e-mail address: kgsenda@petersonpurvislaw.ca
web site address: www.petersonpurvislaw.ca

THIS ARTICLE IS FOR GENERAL INFORMATIONAL PURPOSES ONLY TO ILLUSTRATE ONE TYPE OF LAW THAT THE AUTHOR PRACTICES. IT IS NOT LEGAL ADVICE NOR IS IT INTENDED TO BE LEGAL ADVICE. A PARTY READING THIS ARTICLE SHOULD NOT DO ANYTHING OR REFRAIN FROM DOING ANYTHING BASED ON THE CONTENTS HEREOF. ANY PARTY INVOLVED IN A LEGAL ISSUE WHICH MIGHT POTENTIALLY BE IN THE AREA CANVASSED BY THIS ARTICLE MUST SEEK LEGAL ADVICE FROM THEIR QUALIFIED LEGAL COUNSEL.

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