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There are a few things to share before we get to this issue’s commentary.

Acacia lawyers Albertos and John had a piece featured in the January/February issue of Faith Today. Church Policies in a Changing World covers some of the issues church and organizational leadership should consider in our shifting legal and cultural landscapes. As the piece’s subtitle states: “Get your documentation on moral issues in order before a legal problem arises.” 

Last week, LifeSiteNews ran an article, Canadian court says city that removed pro-life ads from buses violated free speech rules, where John was thanked for his contribution in the Guelph and Area Right to Life freedom of speech case.

A Case about Construction Fines Might Turn the Tides for Religious Freedom In Canada

By Albertos Polizogopoulos

The Globe and Mail ran an article recently that referred to the Supreme Court of Canada’s November 2020 decision in Quebec v. 9147-0732 Québec, 2020 SCC 32. The case is not the type that would attract any media attention, nor is it the type that would usually grab the attention of religious freedom lawyers like ourselves.

It involved a company in Quebec that was fined approximately $30,000 for undertaking construction work without proper licenses. In defending the fine, the company appealed to section 12 of the Charter of Rights and Freedoms which protects against “cruel and unusual punishment,” which it claimed the high fine constituted.

Once the matter reached the Supreme Court, the issue was whether a corporation could be cruelly and unusually punished. The Court was split on the issue of the application of section 12 of the Charter to corporations and, more interestingly, on how the Charter should be interpreted.

Over the four decades since the Charter became the “supreme law of Canada,” it has seemingly expanded certain rights while limiting others. Certain Supreme Court decisions were rendered and then overturned in fairly short periods of time, at least from a jurisprudential perspective.

For example, in 1990, the Supreme Court upheld Canada’s laws related to prostitution. In 2013, it struck those same laws as being unconstitutional. In 1993, the Supreme Court upheld Canada’s laws prohibiting euthanasia and assisted suicide. In 2015, it struck those same prohibitions as being unconstitutional. Lastly, in 2001, the Court ruled that denying Trinity Western University’s teachers’ college accreditation because of its Community Covenant which asked staff and students to abide by biblical sexual standards violated the University’s Charter rights. In 2018, the Court, including one judge who had sided with Trinity Western in 2001, ruled that it was appropriate for the Law Society of British Columbia to refuse to accredit Trinity Western University’s proposed law school for the same reason.

Those who support these changes in the approach to Charter rights often cite the Living Tree doctrine, which states that the Charter is a living tree that grows and changes according to cultural and societal norms. Or, as a colleague of mine argued before a court, more often like a “mutant organism.” As a result of this doctrine, the common law changes and mutates so quickly that it is sometimes hard for lawyers to advise their clients. Who knows how the Court will rule next? It creates uncertainty in the law.

So what happened in this case about quasi-criminal fines against a corporation? The Court backed away from the Living Tree doctrine and advocated for a textual approach to interpreting the Charter.

They delved into when, if ever, it is appropriate to go beyond the text of the Charter. The majority of the judges concluded that the text, plainly read, is primary in interpreting the Charter. This appears to be a course correction from a more runaway purposive approach. This view is in deep contrast to what the Court has called “the purposive approach” to interpreting the Charter, where the Court considers the purpose of the rights being considered. The purposive approach has dominated the interpretation of Charter rights in litigation since its introduction in 1982.

The Living Tree doctrine has allowed judges to rule in manners consistent with current popular social or cultural trends, not what the Charter framers intended.

Here though, the Court takes a different approach and endorses the textual approach:

Para. 8: “[…] This Court has consistently emphasized that, within the purposive approach, the analysis must begin by considering the text of the provision […]”

Para 9: “This is so because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text. Indeed, while constitutional norms are deliberately expressed in general terms, the words used remain “the most primal constraint on judicial review” and form ‘the outer bounds of a purposive inquiry.’”

Para 10: “Moreover, while Charter rights are to be given a purposive interpretation, such interpretation must not overshoot (or, for that matter, undershoot) the actual purpose of the right.”

Para 20: “As a constitutional document that was “made in Canada” the Charter and its provisions are primarily interpreted with regards to Canadian law and history.”

When reading these quotes, it’s hard not to think of certain “culture war” cases like Morgentaler, which struck down Canada’s abortion laws, or Carter, which struck down Canada’s euthanasia and assisted suicide laws. How would these cases have been decided with the current make-up of the Court?

This quasi-criminal case involving construction fines would not usually be one of interest to the Christian or freedom-loving community, but this one should be because it may signal that the tide is changing at the Supreme Court.

Part of Canadian history is the recognition of religious freedom and compromise. Indeed, one great compromise in Canada’s founding was on religious freedom. The tension between the English and French, or Protestant and Catholic communities needed to be addressed. In order to unify as a Dominion, minority language rights were extended to francophones, and both Protestants and Catholics were given educational rights. These were matters of great importance and even matters of spiritual salvation for many of those involved. Yet, as part of our Constitutional compromise, tolerance was invoked, and both those communities were given room to participate in the public sphere.

Is Quebec v. 9147-0732 Québec an indication that we may be returning to a place in Canada where such a compromise can be struck and very different (even opposing) communities can co-exist and respect each other’s rights?

I certainly hope so.

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