Baier v. Alberta

Baier v. Alberta
Collection
Supreme Court Judgments
Date
2007-06-29
Neutral citation
2007 SCC 31
Report
[2007] 2 SCR 673
Case number
31526
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Alberta
Subjects
Constitutional law
Education law
Notes
SCC Case Information: 31526
Decision Content
SUPREME COURT OF CANADA
Citation: Baier v. Alberta, [2007] 2 S.C.R. 673, 2007 SCC 31
Date: 20070629
Docket: 31526
Between:
Ronald David Baier, George Ollenberger,
Liam McNiff, Evelyn Alexandra Keith and
Alberta Teachers’ Association
Appellants
and
Her Majesty the Queen in Right of Alberta
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of New Brunswick,
Attorney General of British Columbia, Attorney General of Prince Edward Island,
Canadian Teachers’ Federation, Alberta Federation of Labour and
Public School Boards’ Association of Alberta
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 69)
Concurring Reasons:
(paras. 70 to 78)
Dissenting Reasons:
(paras. 79 to 123)
Rothstein J. (McLachlin C.J. and Binnie, Deschamps and Charron JJ. concurring)
LeBel J. (Bastarache and Abella JJ. concurring)
Fish J.
______________________________
baier v. alberta
Ronald David Baier, George Ollenberger,
Liam McNiff, Evelyn Alexandra Keith and
Alberta Teachers’ Association Appellants
v.
Her Majesty the Queen in Right of Alberta Respondent
and
Attorney General of Ontario,
Attorney General of New Brunswick,
Attorney General of British Columbia,
Attorney General of Prince Edward Island,
Canadian Teachers’ Federation,
Alberta Federation of Labour and
Public School Boards’ Association of Alberta Interveners
Indexed as: Baier v. Alberta
Neutral citation: 2007 SCC 31.
File No.: 31526.
2006: November 9; 2007: June 29.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal of alberta
Constitutional law — Charter of Rights — Freedom of expression — School board elections — Ineligibility of school employees — Provincial government enacting legislation imposing province‑wide restriction on school employees serving as school trustees — Whether legislation infringes freedom of expression — Canadian Charter of Rights and Freedoms, s. 2 (b) — Local Authorities Election Act, R.S.A. 2000, c. L‑21, s. 22 — School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a).
Constitutional law — Charter of Rights — Right to equality — School board elections — Ineligibility of school employees — Provincial government enacting legislation imposing province‑wide restriction on school employees serving as school trustees — Whether legislation infringes right to equality — Whether occupational status an analogous ground — Canadian Charter of Rights and Freedoms, s. 15(1) — Local Authorities Election Act, R.S.A. 2000, c. L‑21, s. 22 — School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a).
Education law — School authorities — School board elections — Ineligibility of school employees — Provincial government enacting legislation imposing province‑wide restriction on school employees serving as school trustees — Whether legislation infringes freedom of expression or right to equality — Canadian Charter of Rights and Freedoms, ss. 2 (b), 15(1) — Local Authorities Election Act, R.S.A. 2000, c. L‑21, s. 22 — School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a).
The Local Authorities Election Act (“LAEA”) governs the proceedings for election to municipal councils and school boards in Alberta. Prior to the amendments at issue here, it restricted school employees from running for election as school trustees only in the jurisdiction in which they were employed. In 2004, the School Trustee Statutes Amendment Act, 2002 amended the LAEA to restrict school employees from running for election as school trustees anywhere in the province unless they took a leave of absence and then resigned if elected. The appellants sought to have the LAEA amendments declared unconstitutional as violating ss. 2 (b) and 15(1) of the Charter . The Court of Queen’s Bench granted an order that the LAEA amendments were contrary to s. 2 (b) of the Charter , and were not justified under s. 1 . The Court of Appeal set aside the decision, concluding that the LAEA amendments do not infringe ss. 2 (b) or 15 of the Charter .
Held (Fish J. dissenting): The appeal should be dismissed.
Per McLachlin C.J., Binnie, Deschamps, Charron and Rothstein JJ.: The expressive aspects of school trustee candidacy and school trusteeship are sufficient to consider whether s. 2 (b) is violated. Section 2 generally imposes a negative obligation on government rather than a positive obligation of protection or assistance. Here, the right claimed is a positive one, as the appellants are seeking access to the statutory platform of school trustee candidacy and school trusteeship. The fact that they had access to this platform prior to the LAEA amendments cannot convert their claim into a negative one. Since the appellants are making a positive claim, the question is whether their claim meets the grounds for an exception to the general rule that s. 2 (b) only protects from government interference. [20] [33] [35‑36] [43]
Claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime. Since the appellants’ claim is grounded in access to the particular regime of school trusteeship, it does not meet this first Dunmore criterion. Nor does the claim meet the second Dunmore factor. The appellants have not established that their practical exclusion from school trusteeship substantially interferes with their ability to express themselves on matters relating to the education system. The LAEA amendments may deprive them of one particular means of expression, but it has not been demonstrated that absent inclusion in this statutory scheme, they are unable to express themselves on education issues. Nor have the appellants proved that the purpose of the LAEA amendments was to infringe their freedom of expression. Because the appellants have not established a substantial interference with their ability to exercise their freedom of expression, it is unnecessary to consider the third Dunmore factor. [44] [48] [54]
Using s. 3 to read down the scope of s. 2 (b) of the Charter would stray from the long‑standing recognition of the overlapping relationship of various Charter rights. A finding that s. 3 does not apply does not foreclose consideration of a claim under s. 2 (b). Nevertheless, there is no s. 2 (b) violation in this case. [59‑60]
There was no infringement of s. 15(1) of the Charter . While there is differential treatment of school employees under the LAEA amendments as compared with municipal employees, this differential treatment is not based on an enumerated or analogous ground. There is no basis for identifying occupational status as an analogous ground on the evidence presented here. Neither the occupational status of school employees nor that of teachers have been shown to be immutable or constructively immutable characteristics. Moreover, school employees cannot be characterized as a discrete and insular minority. The appellants have not established that the occupational status of school employees is a constant marker of suspect decision making or potential discrimination. [63] [65] [67]
Per Bastarache, LeBel and Abella JJ.: Despite the undeniable breadth of the constitutional guarantee of freedom of expression, the guaranteed freedom does not protect a right to run for office as a school trustee and, if elected, to take part in the management of the school board. At its foundation, the appellants’ claim concerns a democratic right that the Charter does not protect. The LAEA amendments’ ban on school employees running for office and serving as school trustees does not prevent them from expressing views on any subject, let alone education. The appellants seek to secure constitutional protection for a right to be elected to a management role in the local education system of the province of Alberta, but this falls outside the scope of the Charter unless the equality rights of s. 15 are engaged. The appellants have not made out their claim of a breach of equality rights in the circumstances of this case. [72] [75] [77]
Per Fish J. (dissenting): The deliberate suppression of political expression by Alberta in this case violates s. 2 (b) of the Charter . A legislature which sets up a system of democratically elected boards to administer a fundamental aspect of government activity may not then exclude a certain category or group of otherwise qualified persons from serving on those boards, without any need to justify that exclusion under s. 1 of the Charter . [79] [86]
This Court has traditionally interpreted the freedom of expression guaranteed by s. 2 (b) of the Charter broadly and the decision in Dunmore should not be applied so as to narrow s. 2 (b). A narrow interpretation of Dunmore would allow legislatures, limited only by their obligations under s. 15 , to systematically deny groups access to statutory platforms of expression otherwise available to the public at large. Rather, Dunmore should be viewed in light of this Court’s practice of construing freedom of expression broadly and considering limits on expressive activity at the justification stage of the analysis. This is even more important where, as here, political expression associated with participation in an important democratic institution is involved. [99‑100] [103]
The appellants’ claim is grounded in the fundamental, constitutionally protected freedom to express oneself meaningfully on matters related to education. This freedom clearly exists independently of any statutory enactment. Seeking and holding office as a school trustee is a uniquely effective means of expressing one’s views on education policy. While diminished effectiveness in conveying a message may not always engage s. 2 (b), the difference between writing a letter to a trustee and serving as a trustee is not simply one of degree. By prohibiting school employees from participating in school board elections and governance, Alberta has done more than restrict a particular channel of expression. By excluding school employees from running for office, Alberta has substantially interfered with their freedom of expression. [105] [107‑109]
Where a legislature establishes a universal and democratic system of local governance and then effectively prohibits the participation in that system of a particular group of otherwise qualified citizens, the state must be required to justify that prohibition. It has not done so in this case. On the first branch of the Oakes test, the trial judge was entitled to find, as she did, that Alberta’s assertion of a pressing and substantial concern could not succeed, and nothing before this Court permits of a different conclusion. In any event, the LAEA amendments would clearly fail the minimum impairment branch of the Oakes test. [110‑111] [119‑120]
Cases Cited
By Rothstein J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Haig v. Canada, [1993] 2 S.C.R. 995; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; referred to: R. v. Zundel, [1992] 2 S.C.R. 731; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Montréal (City) v. 2952‑1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15; Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43; R. v. Lyons, [1987] 2 S.C.R. 309; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
By LeBel J.
Referred to: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.
By Fish J. (dissenting)
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d), 15 , 27 .
Local Authorities Election Act, R.S.A. 2000, c. L‑21, ss. 21, 22.
School Act, R.S.A. 2000, c. S‑3.
School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2).
Authors Cited
Cameron, B. Jamie. “The ‘Second Labour Trilogy’: A Comment on R. v. Advance Cutting, Dunmore v. Ontario, and R.W.D.S.U. v. Pepsi‑Cola” (2002), 16 S.C.L.R. (2d) 67.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2006, release 1).
APPEAL from a judgment of Court of Appeal of Alberta (Picard, Costigan and Ritter JJ.A.) (2006), 57 Alta. L.R. (4th) 205, 384 A.R. 237, 269 D.L.R. (4th) 241, [2006] 8 W.W.R. 33, [2006] A.J. No. 447 (QL), 2006 ABCA 137, allowing an appeal and dismissing a cross‑appeal from a judgment of Sulyma J. (2004), 38 Alta. L.R. (4th) 303, 369 A.R. 159, 123 C.R.R. (2d) 215, [2005] 7 W.W.R. 68, [2004] A.J. No. 1003 (QL), 2004 ABQB 669. Appeal dismissed, Fish J. dissenting.
James T. Casey, Q.C., Sandra M. Anderson and Ayla Akgungor, for the appellants.
Kurt J. W. Sandstrom and Alice K. Barnsley, for the respondent.
Robert E. Charney, for the intervener the Attorney General of Ontario.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Neena Sharma and E. W. (Heidi) Hughes, for the intervener the Attorney General of British Columbia.
Written submissions only by Ruth M. DeMone and Sherry E. Gillis, for the intervener the Attorney General of Prince Edward Island.
Allan O’Brien and Christopher Rootham, for the intervener the Canadian Teachers’ Federation.
Leanne M. Chahley and Daniel N. Scott, for the intervener the Alberta Federation of Labour.
Dale Gibson, for the intervener the Public School Boards’ Association of Alberta.
The judgment of McLachlin C.J. and Binnie, Deschamps, Charron and Rothstein JJ. was delivered by
Rothstein J. —
I. INTRODUCTION
1 This case concerns whether legislation that limits the ability of school employees to run for election and serve as school trustees in Alberta is constitutional.
2 I agree with the conclusion reached by the Alberta Court of Appeal. The legislation does not infringe s. 2 (b) or 15 of the Canadian Charter of Rights and Freedoms . Therefore I would dismiss the appeal.
II. FACTUAL BACKGROUND
3 The Local Authorities Election Act, R.S.A. 2000, c. L-21 (“LAEA”), governs the proceedings for election to municipal councils and school boards in Alberta. The LAEA sets out the qualifications required to be a candidate for school trustee. A person may be nominated as a candidate if he or she is eligible to vote, meets certain residency requirements, and is not otherwise ineligible (s. 21).
4 Ineligibility to be nominated as a candidate is dealt with in s. 22 of the LAEA. Prior to the amendments at issue in this appeal, it restricted school employees from running for election as a school trustee only in the jurisdiction in which they were employed (“own-employer restriction”). Any public school employees who wished to seek election to their employing school board were required to take a leave of absence and were deemed to have resigned if elected (ss. 22(1)(b) and 22(9)). There was no requirement to take a leave of absence or to resign if a school employee was elected as a school trustee to any other school board.
5 In 2004, Alberta legislated to expand the “own-employer” restriction into a province-wide restriction on school employees serving as school trustees. The School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23 (“LAEA Amendments ”), amended the LAEA by adding a provision stating that, unless on a leave of absence, a person is not eligible to be nominated as a candidate for election as a trustee of any school board if that person is employed by any school district or division, charter school, or private school in Alberta. If a school employee is ultimately elected as a school trustee, s. 22(9) of the LAEA is engaged, which deems the school employee to have resigned his or her position of employment in order to carry out the role of school trustee. There is therefore a deemed resignation even when a school employee is elected to a school board which is not his or her employer.
6 The appellants Baier, Ollenberger and McNiff are teachers who, at the time the LAEA Amendments were passed, were serving as school trustees on school boards that did not employ them. The appellant Keith is a teacher who intended to seek election to a school board. The parties agree that “average school trustee remuneration in 2002-2003 was approximately $12,677”. According to the chambers judge, in 2004 the appellants Baier, Ollenberger, and McNiff had annual salaries as teachers of $71,536.68, $83,626.80 and $69,165.96 respectively.
7 The appellants sought to have the LAEA Amendments declared unconstitutional as violating ss. 2 (b) and 15(1) of the Charter . At the hearing of the appeal in this Court, the appellants conceded the constitutionality of the prior legislation, which prohibited school employees from serving as trustees solely on their own employer boards. It is the blanket restriction from sitting on any school board in the province that they challenge.
8 The chambers judge, Sulyma J. granted an order that the LAEA Amendments were contrary to s. 2 (b) of the Charter and were not justified under s. 1 . At the Alberta Court of Appeal, Alberta’s appeal was allowed.
III. RELEVANT STATUTORY PROVISIONS
9 The relevant statutory provisions are set out in the Appendix. The main provision that the appellants challenge in this appeal is s. 1(2)(a) of the LAEA Amendments, which amends the LAEA in order to restrict school employees from sitting on any school board in Alberta. This amendment adds to s. 22 of the LAEA the following:
22 ...
(1.1) A person is not eligible to be nominated as a candidate for election as a trustee of a school board if on nomination day the person is employed by
(a) a school district or division,
(b) a charter school, or
(c) a private school,
in Alberta unless the person is on a leave of absence granted under this section.
Under the amendments, a school employee may request a leave of absence in order to be a candidate for school trustee and his or her employer must grant that leave of absence (LAEA, ss. 22(5.1) and 22(6.1) ). Should the employee not be elected he or she may return to work (LAEA, s. 22(8) ). If the employee is elected he or she will be deemed to have resigned as a school employee (LAEA, s. 22(9) ).
10 The appellants also challenge s. 1(2)(b) of the LAEA Amendments, which provides that the prior more limited ineligibility provision, the “own-employer restriction”, no longer applies to school trustee elections.
11 Section 2 (b) of the Charter provides:
2. Everyone has the following fundamental freedoms:
...
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
12 Section 15(1) of the Charter provides:
15. (1) Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
IV. ISSUES
13 On August 17, 2006, the Chief Justice stated the following constitutional questions:
1. Do ss. 1(2)(a) and 1(2)(b) of the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23 , infringe s. 2 (b) of the Canadian Charter of Rights and Freedoms ?
2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?
3. Do ss. 1(2)(a) and 1(2)(b) of the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23 , infringe s. 15 of the Canadian Charter of Rights and Freedoms ?
4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?
V. JUDGMENTS BELOW
A. Court of Queen’s Bench of Alberta (2004), 38 Alta. L.R. (4th) 303, 2004 ABQB 669
14 Sulyma J. held that running for office is an activity which conveys or attempts to convey meaning and therefore falls within the scope of the s. 2 (b) guarantee. She held that the purpose of the amendments did not infringe s. 2 (b) since the legislation was meant to protect the democratic process by ensuring the business of school boards can be carried on without concerns about conflicts of interest. However, with respect to the effects, Sulyma J. found that given the significant disparity between a teacher’s salary and trustee remuneration, forcing teachers to resign from their employment for the duration of their term as trustees rendered illusory any opportunity for teachers to run for office as school trustee under the LAEA Amendments. Unless they gave up teaching, they would be forced to live on the remuneration paid to school trustees, and this was so onerous as to result in a violation of the s. 2 (b) guarantee.
15 Sulyma J. concluded that the LAEA Amendments could not be saved by s. 1 of the Charter . She did not rule on the Charter s. 15 claim.
B. Court of Appeal of Alberta (2006), 57 Alta. L.R. (4th) 205, 2006 ABCA 137
16 Alberta appealed Sulyma J.’s findings with respect to s. 2 (b). The appellants cross-appealed alleging an infringement of s. 15(1) .
17 Costigan J.A., for the court, considered whether seeking election to a school board is a fundamental freedom protected by s. 2 (b) or whether it is a statutory platform for expression. He found that whether to have school board elections and, if so, who can run in those elections, was purely a matter of legislative policy governed by the LAEA Amendments. The appellants’ claim of underinclusion was therefore grounded in a statutory regime and not in a fundamental Charter freedom. Their exclusion under the LAEA Amendments did not interfere with a fundamental freedom or with the exercise of a constitutional right, and this was not an exceptional case in which the context mandated positive government action under s. 2 (b). Therefore, he found that the LAEA Amendments did not infringe s. 2 (b) of the Charter .
18 Examining whether the LAEA Amendments infringed s. 15(1) of the Charter , Costigan J.A. relied on the test established in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. He held that the LAEA Amendments “draw a formal distinction between the respondents as school board employees and other Albertans on the basis of the personal characteristic of employment status” (para. 49). However, he found that the appellants’ “occupational status is not an analogous ground” (para. 56). Moreover, he held that a distinction on the basis of the teaching occupation does not bring into play prejudice, stereotyping or historical disadvantage, and exclusion from seeking election to a school board did not affect the appellants’ dignity. Therefore, the distinction was not discriminatory and there was no infringement of s. 15(1) . He allowed the appeal and dismissed the cross-appeal.
VI. ANALYSIS
A. Freedom of Expression
19 In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, a two-part analysis was established for determining whether a violation of freedom of expression has occurred. The first step asks whether the activity is within the protected sphere of free expression. If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Once it is established that the activity is protected, the second step asks if the impugned legislation infringes that protection, either in purpose or effect. This analysis has been used in many subsequent cases (e.g. R. v. Zundel, [1992] 2 S.C.R. 731, Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083).
20 While the Irwin Toy test defined the scope of freedom of expression broadly, in subsequent cases this Court has clarified that s. 2 (b) protection is not without limits and that governments should not be required to justify every exclusion or regulation of expression under s. 1 (Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, at para. 79). In City of Montréal, McLachlin C.J. and Deschamps J., for the majority, found that the method or location of expression may remove it from s. 2 (b) protection (paras. 56 and 60). For example, with respect to the method of expression, s. 2 (b) does not protect violent expression (Irwin Toy, at pp. 969-70), and with respect to location, expression on public property may in some circumstances remain outside the protected sphere of s. 2 (b) (City of Montréal, at para. 79). In addition, the Court has held that s. 2 generally imposes a negative obligation on government rather than a positive obligation of protection or assistance (Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1035; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, at para. 26).
21 In Haig, this Court considered whether freedom of expression includes a positive right to be provided with a specific means of expression. L’Heureux-Dubé J. for the majority, noted that freedom of expression has typically been conceptualized in terms of negative rights rather than positive entitlements:
The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2 (b) prohibits gags, but does not compel the distribution of megaphones. [p. 1035]
22 That case arose in the context of federal and Quebec referenda concerning proposed constitutional amendments in 1992. Mr. Haig had moved from Ontario to Quebec and was unable to vote in either the federal or Quebec referendum because of different residency requirements in the federal and provincial legislation. He challenged the federal legislation as violating his freedom of expression. The majority held that the right to vote in the referendum was governed by the Referendum Act, S.C. 1992, c. 30 , and s. 2 (b) did not require the government to extend that right to all. L’Heureux-Dubé J. stated:
The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status. In my view, though a referendum is undoubtedly a platform for expression, s. 2 (b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone. A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law. [Emphasis added; p. 1041.]
23 The statutory platform analysis in Haig has been followed in a number of subsequent cases which have held that underinclusive legislative schemes or government action did not infringe s. 2 . In Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627 (“NWAC”), the Native Women’s Association of Canada (“NWAC”) alleged that the government’s funding of some Aboriginal organizations, along with the opportunity to participate in constitutional discussions, required the government to bestow upon the NWAC an equal chance for expression of its views, and funding to enable it to do so. The Court determined that there was no positive duty on the government to provide funding to NWAC in the circumstances. Sopinka J., for the majority, stated:
[I]t cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, that the Government is also required to fund a group purporting to represent the opposite point of view. [p. 656]
and
The freedom of expression guaranteed by s. 2 (b) of the Charter does not guarantee any particular means of expression or place a positive obligation upon the Government to consult anyone. [p. 663]
24 In Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3, the Court considered legislation, the Gaming Control Local Option (VLT) Act, S.M. 1999, c. 44, enabling municipalities to hold binding plebiscites on prohibiting video lottery terminals (“VLTs”). The legislation also deemed a previous non-binding plebiscite in the Town of Winkler, in which the residents had voted to prohibit VLTs, to be binding. The appellants, owners of the Winkler Inn who relied on VLTs for revenue, claimed that the effect of the “deemed vote” was to deny them the right to vote in a plebiscite under the Act, and therefore violated their freedom of expression. Following Haig, the Court held there was no breach of s. 2 (b). A municipal plebiscite, like a referendum, was a creation of legislation, and any right to vote in it must be found within the language of that legislation.
25 The statutory platform analysis in Haig has also been applied in cases raising claims under Charter s. 2 (d) freedom of association. In Delisle, the Court considered whether underinclusive labour legislation offended s. 2 (d) or 2 (b). Bastarache J., for the majority, found that neither s. 2 (d) or 2 (b) required that RCMP officers be included in a statutory labour regime. He made clear that underinclusive legislation would generally not offend s. 2 :
The structure of s. 2 of the Charter is very different from that of s. 15 and it is important not to confuse them. While s. 2 defines the specific fundamental freedoms Canadians enjoy, s. 15 provides they are equal before and under the law and have the right to equal protection and equal benefit of the law. The only reason why s. 15 may from time to time be invoked when a statute is underinclusive, that is, when it does not offer the same protection or the same benefits to a person on the basis of an enumerated or analogous ground (on this issue, see Schachter v. Canada, [1992] 2 S.C.R. 679), is because this is contemplated in the wording itself of s. 15 . ... However, while the letter and spirit of the right to equality sometimes dictate a requirement of inclusion in a statutory regime, the same cannot be said of the individual freedoms set out in s. 2 , which generally requires only that the state not interfere and does not call upon any comparative standard. [para. 25]
Citing Dickson J.’s definition of “freedom” as “the absence of coercion or constraint” R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 336), Bastarache J. went on to state at para. 26:
It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance.
As Bastarache J. stated at para. 27 of Delisle, except in exceptional circumstances, ss. 2(d) and 2(b) require only that Parliament not interfere with these fundamental freedoms.
26 While Haig, NWAC, Siemens and Delisle, found s. 2 was not offended by underinclusive legislation or underinclusive government action and that there was no right to a particular platform for expression, the Court left open the possibility that, in exceptional cases, positive action by government may be called for under s. 2. In Haig, for example, L’Heureux-Dubé J. left the door open to positive government action being required in some cases. At p. 1039, she stated:
... a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required. This might, for example, take the form of legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information.
27 In Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, a majority of the Court found such an exception to the general rule that s. 2 does not require positive government action. Labour legislation excluding agricultural workers from a protective regime was found to infringe s. 2(d). Bastarache J., for the majority, considered the factors relevant to establishing an exception:
(1) Claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime (para. 24).
(2) The claimant must meet an evidentiary burden of demonstrating that exclusion from a statutory regime permits a substantial interference with activity protected under s. 2 (para. 25), or that the purpose of the exclusion was to infringe such activity (paras. 31-33). The exercise of a fundamental freedom need not be impossible, but the claimant must seek more than a particular channel for exercising his or her fundamental freedoms (para. 25).
(3) The state must be accountable for the inability to exercise the fundamental freedom: “[U]nderinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms” (para. 26).
28 In Dunmore, these factors were met. The appellant agricultural workers sought protection for the freedom to establish and maintain an employee association. They were substantially incapable of exercising their fundamental freedom to organize without protective legislation. Furthermore, their exclusion from the legislative regime “function[ed] not simply to permit private interference with their fundamental freedoms, but to substantially reinforce such interferences” (para. 35). Agricultural workers were distinguished from the RCMP officers in Delisle because RCMP officers were capable of associating despite exclusion from a protective regime. Unlike agricultural workers, for RCMP officers, inclusion in a statutory regime would serve to enhance rather than safeguard their exercise of a fundamental freedom.
29 While Dunmore concerned freedom of association rather than freedom of expression, the three factors for challenging underinclusive legislation were described as applicable to s. 2 in general. As Bastarache J. noted, Haig, NWAC and Delisle circumscribed, but did not foreclose, the possibility of challenging underinclusion under s. 2 of the Charter . Thus, Dunmore makes clear that while claims of underinclusion may raise concerns under Charter s. 15 equality rights, in certain cases, underinclusion may offend s. 2 itself.
30 In cases where a government defending a Charter challenge alleges, or the Charter claimant concedes, that a positive rights claim is being made under s. 2 (b), a court must proceed in the following way. First it must consider whether the activity for which the claimant seeks s. 2 (b) protection is a form of expression. If so, then second, the court must determine if the claimant claims a positive entitlement to government action, or simply the right to be free from government interference. If it is a positive rights claim, then third, the three Dunmore factors must be considered. As indicated above, these three factors are (1) that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime; (2) that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s. 2 (b) freedom of expression, or has the purpose of infringing freedom of expression under s. 2 (b); and (3) that the government is responsible for the inability to exercise the fundamental freedom. If the claimant cannot satisfy these criteria then the s. 2 (b) claim will fail. If the three factors are satisfied then s. 2 (b) has been infringed and the analysis will shift to s. 1 .
VII. APPLICATION TO THE CASE
Question 1
Do ss. 1(2)(a) and 1(2)(b) of the School Trustee Statutes Amendment Act, 2002, infringe s. 2 (b) of the Canadian Charter of Rights and Freedoms ?
A. Expressive Activity
31 The threshold to any s. 2 (b) claim must be that there is expression involved. The appellants claim that “[s]tanding for election to the office of school trustee and serving as a school trustee” are expressive activities, the restriction of which they claim violates s. 2 (b) (appellants’ factum, at para. 27). These activities, they argue, represent “unique and important opportunities to engage in political debate, persuasion and voting on the governance, funding and management of the public and separate education systems” (ibid.). The respondent concedes that seeking nomination for school trustee and some of the activities of school trustees may be characterized as having an expressive nature (respondent’s factum, at paras. 1 and 18).
32 It might be said that the expressive nature of school trusteeship is merely incidental, and that school boards are primarily concerned with school management rather than expression. However, there is nothing that requires that the activity in question be purely or predominantly expression to count as expression for s. 2 (b) purposes (see e.g. RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 588).
33 The LAEA Amendments only restrict who has access to the platform of school trusteeship for expressive activity. They do not constrain the expressive activities of those with access to the platform i.e. those not ineligible to be school trustees. I interpret the appellants’ complaint as “I do not have access to school trusteeship to express myself” rather than, “as a school trustee I cannot express a particular view”. Expressive activity is in issue, although what is restricted is the platform on which that expression may take place rather than the content of the expression. I find that the expressive aspects of school trustee candidacy and school trusteeship are sufficient to continue consideration of whether s. 2 (b) is violated.
B. Is a Positive Right Claimed?
34 Having decided that expression is involved, it must next be determined whether that expression is protected under s. 2 (b). As previously observed, s. 2 (b) is not without limits and not every expressive activity is accorded constitutional protection. Alberta submits that the appellants are claiming a positive right, because the activities at issue exist only by virtue of the school board system set up under the School Act, R.S.A. 2000, c. S-3, and the trustee election provisi