Hutterian Brethren and the Supreme Court of Canada – One Lawyer’s Story Article #3 – Alberta Court of Appeal

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21st Sep 2010

ARTICLE #3 – THE ALBERTA COURT OF APPEAL

The Alberta Court of Appeal (“ABCA”) was the second level of court for the Hutterian Brethren.

At Queen’s Bench (“QB”), it is necessary for all evidence to be put before the court and all the relevant legal theories to be argued since if anything is missed at this level, generally it cannot be put before the ABCA. The QB Justice has now waded through the evidence and law, has made findings of fact and rulings of law. The ABCA has the benefit now of being able to review the judgement from the lower court.

So, whereas at the QB level of court, the entire case (evidence and law) is put before the court, at the ABCA level, it is only potential errors made by the QB Justice that are reviewed. The appeal is not what is called “de novo” where the ABCA replaces the QB decision with what the ABCA feels should have been the decision, except as explained below when it is an error of law. Rather, the ABCA only deals with rectifying “errors” made by the QB Justice.

There are potentially several types of errors with which an appeal court can deal, with different standards of appellate review that applies to them. At the ABCA, both parties ultimately limited their appeals to “errors” in law, which set the standard of review as “correctness”, or did the QB Justice correctly apply the law. Where the issue on appeal is one of law, the appeal court may replace its opinion on the law with that of the QB Justice. The facts, not being in dispute at the appeal, were accepted by the ABCA. (See endnote #1 for a brief description of the types of error and standards of appellate review)

Although the AG alluded to an error of a finding of fact in its written submissions, it did not make any arguments to pursue this argument at the actual hearing before the ABCA. The argument of the AG was that the QB Justice erred in law by finding that Section 1 of the Charter did not justify the infringement of the Hutterian Brethren’s right to freedom of religion and right of equality.

The Hutterian Brethren set out in its written submissions that the QB Justice had not made an error in law in ruling that the law was unconstitutional. However, the Hutterian Brethren did argue that the QB Justice had made an error in law in the first part of the Oakes test, the part that deals with the objective to be served. In a nutshell, the Hutterian Brethren argued that since the mandatory photo requirement was set out in a regulation and not the legislation itself, the objectives being put forward by the AG were either
invalid or conflated the issue, thereby compromising the entire Oakes analysis.

When all was said and done, the standard of appellate review was limited to “correctness” as both parties argued only issues of law.

Although the task at hand for counsel was different than at the QB level, again it was clear what needed to be accomplished: at the Court of Appeal it was to argue whether the law as set out by the QB Justice was correct or not. Since the QB Justice set the law out in his judgement, it was a matter of determining whether that application of the law was correct or not.

As a note, when the case moved to the ABCA (and ultimately the SCC), the parties had to consider the principle of stare decisis when deciding what case law to put before the court in argument. Decisions of other courts may have persuasive quality or may be binding on a particular court. However, as we moved up the appeal process, a case which was persuasive or binding at a lower level of court, lost that persuasive or binding quality at the higher level of court. Therefore, not only did the legal arguments need to be tailored to the level of court, it was also necessary to reconsider whether to put forward a particular
case. Since this principle was not critical to the whole process, I have not included it in the body of this article. However, those interested in a brief description of stare decisis can read it in the endnote #2.

Judgment of the Alberta Court of Appeal

The appeal was heard by a 3 judge panel at the ABCA. Ultimately, the decision was split with 2 Justices denying the appeal, thereby upholding the judgement of the QB Justice that the law was unconstitutional, and 1 Justice allowing the appeal. Since the majority rules, the appeal was denied and the law remained unconstitutional.

The Majority Decision

The majority framed the issue on appeal as “whether the mandatory photo requirement constitutes an unjustified infringement of the [Hutterian Brethren’s] rights to freedom of religion and equality.”

Since the AG did not dispute that “the photo requirement…constitutes a prima facie violation of [the Hutterian Brethren’s] Charter rights” the majority narrowed the issue to the Section 1 analysis: can the infringement of the Hutterian Brethren’s guaranteed Charter rights be justified in a free and democratic society.

The majority then set the stage for their analysis by reviewing the facts, the decision of the QB Justice, the positions of the parties, the legal framework to be used in the analysis and the appropriate standard of appellate review.

The majority noted that the AG framed the objective as threefold:

  1. prevent identity theft;
  2. facilitate harmonisation with other provinces and countries; and,
  3. reduce terrorism.

The majority further noted the AG’s argument that mandatory photos will reduce security risks associated with licences in 2 ways:

  1. it will not be possible to fraudulently claim the identity of an individual already in the system; and,
  2. it will not be possible for an individual already in the system to apply for a second licence using a false name.

OK, remember that the AG has the onus of proving each of the 4 parts of the Oakes test, including the “objectives to be served”. It is not enough that the AG state its position, it must prove it.

In its analysis the ABCA differentiated between legislation and regulations passed pursuant to that legislation. The mandatory photo requirements are not included in the legislation, only the regulations. In other words, a regulation may not be sufficient to prove the objectives to be served as articulated by the AG if the enabling statute does not contemplate such objectives.

Say what? OK OK a short digression into our legislative process.

Legislation or statutes, both provincial (like the Traffic Safety Act or “TSA”) and federal (like the criminal code) go through a process where they are debated in public (the Legislature or Parliament) by all political parties before becoming law. This open debate allows critical analysis of proposed law from many different vantage points by our elected politicians. This is the (theoretical) fundamental nature of a democracy.

Regulations, on the other hand, take their life from and are authorised by the enabling legislation. The regulations are not debated and are created by bodies subordinate to the Legislature or Parliament, sometimes the Minister and sometimes by the bureaucracy. If a regulation is not authorised by legislation, the regulation is null.

The TSA as the enabling legislation went through the normal process of debate and acceptance by the Legislature. The majority noted that it was significant that the TSA does not make any reference to identity theft, fraud, or terrorism, and therefore preventing these activities is not, on its face, a valid objective of that act. The majority further noted that the ABCA in a previous case unanimously found that “the overarching purpose of the TSA is the regulation of highways and the increase of safety on them.”

In addition, the majority noted that a driver’s licence is not part of a system of mandatory, universal identity cards and therefore the driver’s licence ought not be conflated and confused with either a mandatory, universal identity card or a travel document. Accordingly, since the purpose of the TSA is highway safety and not security, the objective must be limited to that stated purpose. Although the AG argued that the regulation addressed peripheral harm which may result from the use of driver’s licences, the majority held that a secondary objective of minimising harm is incapable of saving a regulation which is not on its own justifiable in a free and democratic society.

In the end analysis, the majority found that the objective for purposes of the constitutional analysis is to ensure that “every individual who has applied for a licence is represented in the province’s facial recognition data base. Thus, the highway traffic related aims of the photo requirement are a) to prevent an individual from applying for a licence in another person’s name, and b) to prevent a single individual from obtaining two licences.” The majority found that these objectives were sufficiently pressing as to potentially warrant infringement of a guaranteed charter right.

Keep in mind that the ABCA did not make this ruling in an evidentiary vacuum. Once the SCC hands down its decision, I will then be able to go through the evidence which will clarify the basis for this analysis.

Rational Connection

The majority noted that, although the AG’s facial recognition data base appeared to provide a rational connection between the objective to be served and the mandatory photo requirement, that rational connection only relates to those individuals whose pictures exist in the AG’s drivers licence data base. Since there are over 700,000 Albertans who are not in the facial recognition data base because they do not drive, statistically speaking, it is far more likely that an individual would attempt to fraudulently seek a licence in the name of an unlicenced Albertan than in the name of someone driving on a non-photo licence (453 in total). Accordingly, the majority questioned whether the AG had proven a rational connection to the objective to be served but made no specific ruling in that regard as it found that the AG failed at the minimal impairment stage of the analysis.

Minimal Impairment

At this stage of the Oakes analysis, the AG needed to prove that the regulation infringed the guaranteed Charter rights of the Hutterian Brethren as “little as is reasonably possible”. However, it is not necessary that the limit be the least intrusive solution available as the courts must afford the government a “margin of appreciation” when evaluating this criteria.

Since the AG had not proposed any accommodation other than a photograph, which was the very issue challenged by the Hutterian Brethren, the majority found that the AG needed to demonstrate that such an absolute measure was justified pursuant to Section 1. The majority referred to both “reasonable accommodation” and “minimal impairment” in its legal analysis. Minimal impairment is the traditional Oakes approach but reasonable accommodation is a concept borrowed from human rights law that is frequently used in this part of the Oakes analysis. A variation of reasonable accommodation was the major argument put forward by the Hutterian Brethren at the SCC. For a brief description of reasonable accommodation, see endnote 3.

The majority held that since there were tens of thousands of Albertans who do not drive and therefore do not have pictures in the AG’s facial recognition data base, the absolute nature of the mandatory photo requirement “offers only a very slight protection against the risk that a licence will be issued to an individual in a name other than his or her own, while completely infringing the [Hutterian Brethren’s] rights”. Accordingly, the majority held that the AG failed to prove this portion of the Oakes test.

In addition, the majority noted that the AG provided no evidence to support its assertion that bearers of non-photo licences are likely to fraudulently obtain second licences if exceptions to the photo requirement are reintroduced. The evidence established that in the 29 years when the photo exception was available, there were no known cases of this type of fraud occurring and that such a fraud would require an individual to trick the AG twice: once misrepresenting his or her religious objection to being photographed and the second time applying under a false name. Accordingly, although the argument of the AG was theoretically possible, the majority held that it was extremely unlikely, and therefore the AG had failed to prove that this risk actually exists.

The majority also dealt with two other arguments of the AG, one being that reintroducing the non-photo exemption for religious objectors would result in a flood of individuals applying for non-photo driver’s licences, and the second being that, pursuant to the Amselem case, the AG had no choice but simply to issue a non-photo driver’s licence to any individual who stated that their religious beliefs prevented them from having their photograph willingly taken.

With respect to the first argument, the majority noted that in the 29 years where a non-photo exemption was available, only 453 individuals had obtained a non-photo driver’s licence rendering a “flood gates” argument purely speculative, with the past as the best evidence of how many individuals would apply for non-photo driver’s licences.

With respect to the second argument, the majority noted that the AG, even if it could not ask for proof about the objective validity for an individual’s claim to a religious belief, it was still authorised to investigate the veracity of any individual’s subjective claim to having any such religious belief. Therefore, the Amselem case does not prevent the AG gathering evidence to determine the subjective sincerity of the belief of any individual applying for a non-photo driver’s licence. This matter was forcefully brought to the attention of the SCC by one of the interveners – more on this in the next article of this series.

The majority therefore held that the AG “failed to demonstrate that the absolute photo requirement for an Alberta driver’s licence constitutes a minimal impairment of the [Hutterian Brethren’s] rights”. In other words, the AG lost the appeal and the mandatory photo requirement was found to be unconstitutional.

Effects of the Measure

The majority did not specifically rule on this portion of the Oakes test since it found that the AG failed in the minimal impairment portion of the Oakes test. However, the majority did note that the effects of the law are overwhelming and significant and stand in stark contrast with the minute risks associated with allowing some exceptions to the mandatory photo requirement. It appears that the majority would have found that there was no proportionality between the effects and the measures if it had been required to decide on that point.

The Minority Decision

The dissenting Justice agreed that the matter under appeal was whether the AG could prove that Section 1 authorised the overriding of the guaranteed Charter rights of the Hutterian Brethren. The dissenting Justice differentiated between statutes the purpose of which was overtly religious and statutes that are not overtly religious in nature but seek to provide a general requirement on all citizens. He held that a free and democratic society “can more easily tolerate statutes in the last category”.

Objective to be Observed

The dissenting Justice found that the “prevention of misuse of driver’s licences is within the core objectives of the statute” and “the reliability and integrity of driver’s licences is clearly central to the operation of the statute…”. “Accordingly, the objectives to be served are as follows:

  1. To enhance highway safety and the enforcement of highway traffic regulations by enabling the ready identification of licenced drivers;
  2. To minimise the number of disqualified persons operating motor vehicles, and the number of people misrepresenting their identity to peace officers enforcing traffic safety rules, by misuse of driver’s licences;
  3. To maintain the reliability and integrity of driver’s licences as a widely used and respected method of personal identification; and,
  4. To prevent the misuse of driver’s licences as a means of enabling identity theft, fraud, and other misconduct, including the misuse of driver’s licences by those who are a threat to the safety of the public.”

He also found that, although interprovincial and international standards harmonisation is a salutary goal, it alone can not be used to justify a Charter infringement.

Rational Connection

The dissenting Justice held that, even though the mandatory photo requirement would not result in total eradication of the threats raised by the AG, making those threats more difficult is a rational objective even though some such misconduct will continue despite the AG’s best efforts. Accordingly, he found that there was a rational connection between the mandatory photo requirement and the objectives to be served.

Minimal Impairment

The dissenting Justice noted that minimal impairment does not necessarily require the least intrusive solution and that since freedom of religion is not absolute, some impairment of that freedom is tolerable in a free and democratic society. The dissenting Justice based the analysis on reasonable accommodation rather than the traditional “minimal impairment”.

In the discussion of reasonable accommodation, he noted that the Constitution does not require the AG to subordinate its objectives to the religious belief of parties such as the Hutterian Brethren in every case since “accommodation is a two way street”. The dissenting Justice found that “it is inevitable that in some cases religious beliefs will have to yield to laws of general application.” This statement appears to be the introduction of U.S. constitutional law into Canadian constitutional analysis. Generally speaking, the
Oregon vs. Smith case of the U.S. Supreme Court states that constitutionally guaranteed rights of freedom of religion are subordinate to laws of general application. The dissenting Justice reasoned that, since subjective religious beliefs are constitutionally protected, “it is easier to reach the level of undue hardship in a freedom of religion case than it is when other [Charter] rights are involved”. By this statement, the dissenting Justice appears to be creating a hierarchy in the Charter, with some rights being more important than others. This concept of a hierarchy amongst Charter rights is not without controversy.

The dissenting Justice went through a detailed analysis of what constituted “undue hardship” for a party in the position of the AG when attempting to provide reasonable accommodation. After this analysis, the dissenting Justice found that, where the AG is pursuing legitimate secular purposes such as protecting other individuals from identity theft, any proposed accommodation which would compromise the achievement of those secular purposes in a significant way would amount to undue hardship. He found that the AG had shown that the issuance of driver’s licences without photographs would introduce a significant vulnerability into the licencing system, beyond mere inconvenience, which was sufficient hardship to justify overriding the Charter rights of the Hutterian Brethren. Again, the reader will need to wait until the SCC hands down its decision before I am able to put forward any of the evidence upon which the dissenting Justice based his finding.

The dissenting Justice found that the accommodations proffered by the AG were reasonable even though they would still involve the creation of an image “in apparent violation of the Second Commandment” since these alternatives would “significantly limit the obligation of the holder of the licence to display the image”. Since the proposed accommodations would preclude the Hutterian Brethren ever having to look at their photographs themselves, he found that these accommodations were reasonable.

Since the Hutterian Brethren believe that their photographs should not be taken voluntarily, he reasoned that, if faced with a choice between a communal agricultural lifestyle and having their photographs taken, the Hutterian Brethren could always hire drivers. In addition, he noted that:

“If failing to hold a driver’s licence will truly result in the complete collapse of the communal system of living which is at the centre of the religious life of the [Hutterian Brethren], it would follow that holding a driver’s licence would be the lesser of evils faced by [the Hutterian Brethren]. Submitting to the requirement of a photograph in order to obtain a driver’s licence that is necessary to maintain the very existence of the colony, is not, by any objective standard, the voluntary submission to a photograph. …requiring a photograph, subject to the accommodations proposed by the [AG], would therefore be a minimal impairment on the religious beliefs of the [Hutterian Brethren], even though the [Hutterian Brethren] believe there is some residual voluntariness involved in providing the photograph.”

The dissenting Justice reasoned that the proposed accommodations of the AG would not be voluntary and therefore would “emphasise the coerced nature of the photograph”. It appears that the dissenting Justice differentiated between voluntarily submitting to a photograph and being coerced to involuntarily submit to a photograph with the latter being justified under Section 1 of the Charter.

The dissenting Justice found in summary that the proposed accommodation of the Hutterian Brethren of having the non-photo driver’s licence specifically marked “not to be used for identification purposes” would not be an accommodation in substance as the licence would still be used as a form of identification.

Accordingly, the dissenting Justice found that the AG had proven minimal impairment of the religious rights of the Hutterian Brethren.

Effects of the Measure

The dissenting Justice found that the AG had proven that there was proportionality between the deleterious and salutary effects of the mandatory driver’s licence regulation. Either the Hutterian Brethren would have to hire drivers or a small number of them would have to have their photos taken which would be done under an “element of practical compulsion, which will considerably diminish any disobedience to their religious tenets”.

The dissenting Justice would have allowed the appeal.

On to the Supreme Court of Canada – Article #4 in the series

A copy of the written decision of the Alberta Court of Appeal can be viewed free at the CanLii website (http://www.canlii.org/en/index.php) and search for “Hutterian Brethren of Wilson Colony” or at the Alberta Courts website Alberta Courts website (www.albertacourts.ab.ca) and search the Alberta Court of Appeal Judgments for “Hutterian Brethren of Wilson Colony”.

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.

Endnote #1: Issues on Appeal and Standard of Appellate Review

Except for errors in the application of the law as discussed below, the appellate court cannot simply say “we don’t agree with the QB decision so we are replacing it with our own decision.” The ABCA review on appeal is limited to rectifying “errors”.

It is first necessary to look at what constitutes an “error” that can then be argued at the appeal level. Depending upon the type of “error”, the appropriate standard of appellate review will change. Therefore it is a 2 step process: first, identity the “error” that needs to be argued, and secondly, set out the appropriate standard of appellate review.

There are a number of different types of “errors” for purposes of an appeal: fact, mixed fact and law, law and then as a sub-category of law whether it is an issue of administrative law. Each of these “errors” potentially has a different standard of appellate review.

An error of fact is where the QB Justice has made a finding of fact that is not supported by the evidence or where the QB Justice has failed to take into account a material fact which was supported by the evidence. The appropriate standard of appellate review for an error of fact is “palpable and overriding error”. Palpable error is one that can be plainly seen, a relatively high standard.

of a legal standard to a set of facts. For example, negligence requires a duty to another person, a breach of that duty and damages arising from such breach. A municipality may have a legal duty to take steps to ensure that users of a particular road are aware of potential dangers of traveling too fast through a curve on that road. Whether a legal duty exists and then the corollary of whether a breach of that legal duty has occurred involves both evidence regarding the curve itself (e.g. what is the surface of the road, how sharp
is the curve, what is the visibility going into the curve, have there been other accidents at the curve), in other words facts of the case, and a determination of whether the municipality has breached its duty of care (e.g. by not marking the road with centre lines and shoulder lines, putting up signs warning of the curve or setting maximum speed limits, or clearing brush that may limit visibility) which is an evaluation of whether the municipality satisfied its legal duty of care or whether the municipality did not satisfy its duty of care, and therefore was negligent. The appropriate standard of appellate review for an error of mixed fact and law is “palpable and overriding error”, the same as an error of fact. There may still be some room for argument regarding this standard of appellate review but for purposes of this article, it is theoretical only and not relevant to the discussion.

An error of law is one that deals with whether the appropriate legal analysis or law was applied to the situation or was applied correctly to the situation. The facts are not in dispute and it is only the law itself or its application that is in question. The appropriate standard of appellate review for an error of law is “correctness”, or did the QB Justice correctly apply the law. On the standard of correctness, the “appeal court is free to replace its opinion with that of the [QB Justice] since appellate courts require a broad scope of review with respect to matters of law because their primary role is to delineate and refine legal rules and ensure their universal application.” (per Nikolaisen, a previous decision of the SCC)

As a subset of the error of law, administrative law issues have a different standard of appellate review which is “reasonableness”. This standard did not apply in our case.

In the written arguments submitted to the ABCA, both parties were required to set out the errors to be argued and the appropriate standard of appellate review for each.

Endnote #2: Stare Decisis

The Charter is part of the Constitution of Canada and as such, is the supreme law of the land. Therefore, it applies to all levels of court, including the SCC.

However, in addition to the Charter, the parties needed to rely on judge made law or the common law. The common law is a system of law that we inherited from the UK and is the gradual accumulation of cases adjudicated by judges over the centuries. In this gradual accumulation of cases, certain legal principles were set out that apply to certain factual situations. Stare decisis is the principle by which a court can determine the importance of these previous cases. Although stated as a principle, legal authors and the case law itself at times question whether stare decisis is a legal principle or whether it is a long held tradition that does not strictly bind the courts. The following explanation is based on stare decisis being a legal principle.

Depending upon the level of court and the jurisdiction in which that court resides, a previous case will have varying degrees of importance ranging from mildly persuasive, persuasive, strongly persuasive, or binding (meaning that if the fact situation is the same as the previous case, the court has no option but to adopt the reasoning of that previous case).

For the Alberta Court of Queen’s Bench:

  • the United States Supreme Court and the High Court of Australia are mildly persuasive;
  • provincial courts of equal jurisdiction are persuasive;
  • courts of appeal of other provinces, the House of Lords and the Privy Council are strongly persuasive;
  • the decisions of the Alberta Court of Appeal and the Supreme Court of Canada are binding.

For the Alberta Court of Appeal:

  • the United States Supreme Court and the High Court of Australia are mildly persuasive;
  • the courts of appeal of other provinces are persuasive;
  • the House of Lords and Privy Council are strongly persuasive; and
  • the decisions of the Supreme Court of Canada are binding.

The Supreme Court of Canada, being at the top of the hierarchy, is only bound by statutory law and the Constitution (although there is some theoretical debate as to whether the Supreme Court of Canada is bound by its previous decisions or pre 1949 decisions of the House of Lords and Privy Council). Historically, both the Judicial Committee of the Privy Council and the House of Lords come into play in the discussion of stare decisis but are not included in this discussion.

Statutory law (federal or provincial) is also bound by the Constitution, which is why the courts can declare statutes of no effect if they are contrary to the Constitution. It is not the courts overruling statutory law, it is the courts finding that the statutory law is inconsistent with the Constitution, which is the supreme law of the land.

As the Hutterian Brethren case wound its way up through the court system, consideration had to be given to the case law cited in argument since what was binding or carried persuasive weight at the first level of court lost its binding characteristic or persuasive weight at the higher levels of court. At the QB level of this journey, both sides relied on Canadian authorities, mostly the Supreme Court of Canada. As the journey continued, the AG relied on US cases, both the US Supreme Court and decisions of the US federal appellate courts. At the SCC, the approach of the Hutterian Brethren changed completely, as will be explained in the next article in this series.

Endnote #3 Reasonable Accommodation

Reasonable accommodation is a concept developed in human rights case law. For those interested, 2 seminal SCC cases which established this analysis are the “Meiorin” case (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3) and the “Grismer” case (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868).

Similar to the Hutterian Brethren case, in human rights cases, the applicant must first prove prima facie discrimination arises from the law or standard in question, after which the onus shifts to the other side (e.g. the AG).

As stated in the Grismer case:

“The defendant [in the Hutterian Brethren case the AG] must prove that:

(1) it adopted the standard for a purpose or goal rationally connected to the function being performed;
(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and
(3) the standard is reasonably necessary to accomplish its purpose or goal, because the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost.

Accommodation ensures that each person is assessed according to his or her own personal abilities rather than presumed group characteristics. Failure to accommodate may be shown by evidence that the standard was set arbitrarily, or that individual assessment was unreasonably refused, or in some other way. If the policy or practice is reasonably necessary to an appropriate purpose or goal, and accommodation short of undue hardship is incorporated into the standard, the fact that the standard excludes some people does not amount to discrimination.”

When the concept of reasonable accommodation is used in place of the “minimal impairment” portion of the Oakes test for constitutional cases, generally speaking the courts look to see whether there is an accommodation available (without getting into mere speculation or searching for every possible accommodation that may exist) that will still allow the AG to achieve its objective while not putting undue hardship on the AG. It is this aspect of “undue hardship” that prevents courts from getting into speculation or searching for every possible accommodation.

In the Multani case (Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6) the majority of the SCC stated that the analogy with the duty of reasonable accommodation is helpful to explain the burden resulting from the minimal impairment test with respect to an individual.

This aspect of “reasonable accommodation” was one of the two major arguments of the Hutterian Brethren at the SCC, except the argument was set as “reasonable accommodation is a two way street.” The other main argument related to the issue of the “objective to be served” and whether regulations can set objectives that are not authorised by the enabling statute. More on this in the next article.

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