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Legal scholar Dwight Newman breaks down religious freedom in Canada and the incredible invocation of the Emergencies Act

A person holds a copy of the Canadian Charter of Rights and Freedoms during a rally against COVID-19 restrictions on Parliament Hill, which began as a cross-country convoy protesting a federal vaccine mandate for truckers, in Ottawa, on Saturday, Jan. 29, 2022. Justin Tang/The Canadian Press.

Today’s episode of Hub Dialogues features Sean Speer in conversation with University of Saskatchewan law professor Dwight Newman on the Canadian Charter of Rights and Freedoms, the state of religious freedom in Canada, and the government’s invocation of the Emergencies Act.

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SEAN SPEER: Welcome to Hub Dialogues. I’m your host, Sean Speer, editor-at-large at The Hub. I’m honored to be joined today by Dwight Newman, a Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. He is also the author of a recent paper published by the Cardus Institute entitled Reasonable Limits: How Far Does Religious Freedom Go in Canada? I’m grateful to speak with him about the paper and its key arguments, as well as the ongoing legal issues concerning the Freedom Convoy, and the protests in Ottawa. 

Thanks for joining me, Dwight, and congratulations on the paper.

DWIGHT NEWMAN: Thank you for having me and for taking interest in the paper. 

SEAN SPEER: As a basic starting point, can you please describe for listeners the purpose of Section 1 of the Charter, the notion of reasonable limits, and how it differs from other constitutions found elsewhere in the world?

DWIGHT NEWMAN: Alright, so Section 1 of the Charter is an interesting section because it’s actually both the section that entrenches the guarantee of rights in the Charter and some of the other language within the section, and that says that the rights and freedoms within the Charter are subject to reasonable limits that can be justified in a free and democratic society. That’s a very slight paraphrase of it, but close to the language. So, Section 1, in saying that the rights and freedoms in the Charter are subject to reasonable limits, makes that point clear. And it’s also ended up being interpreted as setting a sort of external standard of reasonable limits that applies to all of the rights and freedoms in the Charter, in essence. 

And that’s different than for example, in the United States, where the Constitution has been interpreted in a way that does recognize limits on rights, but it does that internally within each right in a sense and developed some different jurisprudence or case law around that in relation to each right and freedom in the American Bill of Rights. The Canadian system does have some more similarities to other systems like that, in the European Court of Human Rights, and there have been some influences between different countries around a somewhat shared approach to analyzing these external limits on rights.

SEAN SPEER: Okay, so that’s great context. Thank you, Professor Newman, you’ve just outlined how the Charter itself codifies the principle of reasonable limits. My second question is, how do we go about making that judgment as a society? The paper describes what’s called the Oakes test. What is the Oakes Test? How did it come about? And how does it work?

DWIGHT NEWMAN: So, the Oakes Test is named after a case, the Crown versus Oakes, that was a Supreme Court of Canada decision in the mid-1980s, that ended up interpreting what Section 1 of the Charter meant in terms of reasonable limits on rights and freedoms. And there are some other cases that concern that interpretation. There’s an aspect that involves a requirement that a limit be prescribed by law that’s interpreted in other cases, but the Oakes Test ultimately sets out what it calls a proportionality test for analyzing whether a particular limit is in fact reasonable. 

And so, the Oakes Test has four parts to it—sometimes they’re put into subgroups, but it’s easier just to talk about four parts—and one of them asks really about whether the pursuit of a particular government policy objective is sufficiently important in order to possibly justify a limit on a right or freedom. And so, if a policy objective weren’t important enough, or were directly contrary to the Charter, there could be some situations where something would fail that step; a limit would need to pass all four steps in order to be upheld.

A second element asks whether there’s a rational connection between the limit on the right and the government objective, and so it needs to be contributing in some way towards the achievement of the government objective. A third element, and often the most important, is sometimes called the least restrictive means, but there can be some complications around just how its interpreted. But it’s essentially asking—or minimal impairment, it’s sometimes called, but we’re sort of looking at reasonably minimal impairment—we’re asking there, is there another reasonable way the government could achieve the same objective while having fewer negative impacts on Charter protected rights and liberties? Which is a pretty sensible kind of question to ask, if you’re thinking about does it have objectives that might be achieved through limiting rights and freedoms? But if you don’t have to limit rights and freedoms to achieve the objectives, you probably should use a different policy. 

And the fourth step, which has been debated at times about whether it’s a separate step, but it’s just called overall proportionality. It asks about the balance of gains from a particular limit, and the balance of the negative impact on rights and liberties. And there are some cases where courts have looked at that separately, and said, “Even though something passed all the prior steps, it’s still too negative for rights and liberties” and so, they’re going to stop it at that step. But that’s the four steps. It’s a test crafted by the Supreme Court of Canada in the Oakes case, and thus called the Oakes Test, in order to provide a framework for trying to hold governments to account. They have the burden of proof for governments to justify limits on rights or freedoms. Once there’s been an initial finding that a right or freedom is at stake in a particular case, well, they developed that in the Oakes case in 1986. And it’s endured as the main framework since. There are lots of cases that have commented on the details, but the big structure is there. 

SEAN SPEER: I want to move on to the paper, which specifically talks about this question of reasonable limits and its application to questions of religious freedom. But before we do, just a couple of final questions, sort of setting the stage around Section 1, and the concept of reasonable limits more generally. 

Do you know if the framers of the Constitution Act and the Canadian Charter of Rights and Freedoms thought much about how courts would in effect, operationalize the idea of reasonable limits was that the subject of much discussion or debate in the development of the Canadian Charter of Rights and Freedoms? 

DWIGHT NEWMAN: Honestly, that would be an interesting historical project to get into in more depth. My understanding is that the terms of Section 1 were negotiated mainly between officials more so than between, say, the Premiers and there would have been some thinking about the idea that they wanted a clause to say that the rights and freedoms were subject to reasonable limits.

 I’m guessing there was some appreciation that Canada might end up following somewhat the path of Europe more so than the United States, given the choice to have this clause that sets out the idea of reasonable limits separately. But in terms of whether they had contemplated in full exactly how this would be operationalized, I don’t know that offhand, and as I say, it would be a great historical project for someone to get into. I mean, we keep finding out things about that drafting history over time in the context of different projects.

SEAN SPEER: Dwight, if I can ask one more general question about Section 1, before we get into your paper about its application to religious freedom rights, in particular. How have the courts over time come to view greater limits on Charter-protected rights? Has there been a particular tilt in favour of judicial deference to governments? Or has there tended to be a tilt in favour of judicial activism? Can you just paint a picture, please, about how courts have come to apply Section 1 over time? 

DWIGHT NEWMAN: Well, I would say there’s been a bit of a trend towards accepting more limits on rights and freedoms, possibly in general terms. In the early days of the Charter, I think courts had enthusiasm around the—well, here was their task, it was to apply this Charter. And in some ways, they were dealing with areas that they were positioned well to recraft in some senses. So a lot of the early case law is actually around issues of criminal justice and criminal procedure. For the Courts to say that there was an alternative path available, that would limit rights and freedoms less, that was an easier thing for them to do, in some ways. 

Then you start having challenges to bigger government policies that have very complex dimensions to them, and institutional challenges for the courts in terms of them being positioned to second guess government. I think you had some trend towards them then saying—I mean, that’s when you had in the mid-1980s a deliberate decision. On minimal impairment, they’re not looking for the literal least restrictive means of achieving government objectives so much as a reasonably minimally impairing approach. So, you had a bit of a trend that way. I think that over time courts have still been ready to act based on the Charter, but they’ve done so with perhaps more sensitivity, at times, to that institutional context. But we would find exceptions to that.

I think you find periods of renewed activism by the Court, as it’s sometimes been described, even in the near the end of the 2000s, around 2010 for a period of time. And then COVID has been a different situation altogether, where I think courts have just felt really ill-equipped at times or nervous about second-guessing decisions of governments. There was an interesting piece in I believe the National Post a little while back on how unsuccessful the other challengers had been to COVID policies, and there are a lot of different factors that go into that. But I mean, a lot of it is just courts didn’t feel well placed to start second-guessing government policies in the context of a complex new challenge. 

So, there’s a big history there. In broad terms, I think there’s been some more deference to governments over time, with some periods of exceptions to that, and with some periods where that’s been particularly strong, such as during COVID.

SEAN SPEER: Great, Dwight, that’s a good primer on the ebb and flow of judicial activism and judicial deference across the different rights protected in the Charter.

Let me ask you specifically about religious freedom. Is it your view that Canadian courts have come to accept more limits on those particular rights in recent years? And if so, what would you attribute that trend to? 

DWIGHT NEWMAN: Well, especially in the most recent years, what we’ve started to see is a lot of cases where courts think that they’re engaged with a question of religious freedom up against some other rights or freedom. And those have become very challenging cases for religious freedom interests, or religious freedom rights. I guess I’d say there are a lot of complex things going on there. I’m not sure courts are fully valuing religious freedom at times. We’ve had probably a secularization of the judiciary, to some extent. A lot of complicated things we could talk about there. But certainly, there’s been a readiness to limit religious freedom rights in a number of recent cases. 

On the other hand, I don’t want to give a picture that religious freedom claims are never been upheld, but there certainly have been some very significant cases along those lines, where religious freedom has seemed to be up against something else, and that hasn’t played out well for religious freedom, I guess, in light of various changes in society and the approach of the judiciary that’s present within that. But probably a lot of other factors we could get into there as well. 

SEAN SPEER: Well, let me just pick up the one you raised because it strikes me as an important one. As we secularize as a society, a growing share of the judiciary is also, by definition, secular. How do we ensure that those making these decisions have a good understanding of what it means to be religious?

That is to say there is something different from one’s faith commitments, then one’s preferences on politics or as a consumer, or whatever. It seems to me that that growing gap between the way that people of faith think about their religious commitments, and the way that the secular society understands those commitments, is key to kind of understanding how we will reconcile religious freedom rights on one hand, and broader secular trends in the society on the other hand.

DWIGHT NEWMAN: Right, I guess I’d say in general terms, it’s first of all important just for lots of different groups to be trying to inform the judiciary about religion and faith issues. To have think tanks that are working on these issues and publishing work, that’s an important thing. For advocates to be going into court and presenting the best material that they can to the courts is an important thing. And it doesn’t mean it’s always going to communicate easily, especially in the context of a complex multi-faith society, where the courts are hearing about things that may be, even if the particular judges or religious from some faith tradition, they may be considering the claim of a very different faith tradition from their own, there’s a lot of need just to keep working hard on all fronts. Not just in the courts, in society generally to have people informed on these issues. 

I guess in other ways, it’s important for representatives of faith communities to be present in the public sphere, and to be active and communicating with people so that there can’t be misimpressions of their faith traditions, and that there can be a good awareness of the contribution that faith traditions bring within Canadian society. Beyond that, I’d say, one of the recommendations I make in the report—this is directed a little bit differently, but I suggest that actually when governments are taking steps where they might be intruding upon faith traditions it might be very appropriate for them to seek to engage in advance of an infringement with members of the faith communities who might be affected by the government decision. 

Because it’s often not a simple matter to understand what the issues might be for a particular faith tradition that is very different from that of politicians or bureaucrats. Or if the politicians or bureaucrats are not of a faith tradition also, it’s very important for them to pre-engage in a sense, and to find out what the impact might be in the context of a decision that they don’t realize has an impact, but actually does. 

SEAN SPEER: Let me take you up on that question of the specific government decision, and that is Quebec’s Bill 21. Do you think the law could be sustained using the reasonable limit clause? Or is the notwithstanding clause in your view necessary for maintaining the provincial law? 

DWIGHT NEWMAN: So, Bill 21, presents a lot of issues, and it ties in with a lot of other cultural dimensions in Quebec, and so on. I do discuss it in the paper. One could write a whole paper or more about it and others are writing very actively on it. In brief terms, though, I would suggest it’s difficult to maintain Bill 21 as a reasonable limit under the Oakes Test, if it were to go to that analysis, simply because the objective of having a public service that’s seen as not making decisions based on religious values can be upheld in some other way, apart from prohibiting everyone within it from displaying any kind of faith symbol. We’ve found ways in other parts of Canada, where I don’t think people are going into a government office and saying, “Well, because this person has one faith symbol, and this person has another faith symbol, that they’re making a decision on a religious basis.” We found other ways to assure people of the neutrality of government service provision. 

That said, obviously, Quebec has invoked the notwithstanding clause, and effectively has shut out consideration of the reasonable limits analysis. They’ve done that in light of a very different perspective on secularism in the public sphere, one that is followed in some European countries. So there’s a much larger debate there. But in terms of the legal analysis of the Oakes Test, and coming from a background in Anglophone Canada, I guess I would end up saying that I think it’s pretty difficult to say that that would qualify as a reasonable limit. But Quebec has taken the view that they’ll use the notwithstanding clause to uphold it. 

SEAN SPEER: Well, that’s great, Dwight, that conversation is a tour de force from understanding Section 1, how it’s evolved and how it’s used, and then the deeper question of religious freedom rights and some specific cases in which the competition of different rights and the implications for the reasonable limits clause are present. 

If I can wrap up on the subject of Prime Minister Trudeau’s extraordinary decision to invoke the Emergencies Act. I’d be remiss, being able to speak to one of the country’s leading legal scholars, not to put a couple of questions to you, given how extraordinary this issue is. I mean, maybe just at a fundamental level, do you think the invocation of the Emergencies Act is justified based on the order that the government has put out explaining its rationale, and how it intends to use the powers set out in the Emergencies Act

DWIGHT NEWMAN: So, speaking about this, literally the day that the order has come out, I would say I’ve not seen all of the evidence at this stage. What’s necessary in order to justify the invocation of the Emergencies Act for a public order emergency, which is what they’ve done, is set out in a number of sections of the Emergencies Act, that create a set of cumulative requirements, involving something in the nature of an emergency that goes beyond the ability of anyone to deal with under existing laws. 

Already, you could ask some questions there on whether you actually need more law to deal with this; and that’s got some complications to it. Then for a public order emergency, it needs to be a situation that fits one of several specific criteria, or possible kinds of situations there. The government order has invoked language that’s very much along the lines of a terrorist threat, in terms of where that language would be found elsewhere in the law. I don’t know what evidence they do or don’t have in terms of a terrorist-like threat emanating in the context of the current situation. And we’ll need to see what evidence there is in the days ahead on that. 

There have also already been some questions raised about whether aspects of what they’ve done under the orders, is grounded in the possible things they can do in the context of a public order emergency in the statute, and in particular, the decisions around bank accounts, suspension of bank accounts, these sorts of parts of the Bill. They’re not necessarily as easily grounded in the statutory language for a public order emergency as maybe even for other kinds of emergencies, and there’s been a blog post out on this already by a legal scholar, Paul Daly, who’s looked at that closely, even in the very day that it’s come out and raised some questions there. 

So, I’ll just say, there are questions ahead on whether they’ve sufficiently mapped the evidentiary standards that are required in order to invoke the Emergencies Act, which I’ll add, is in the context where they don’t necessarily need to prove that there’s an emergency, but they need to show reasonable grounds for thinking there’s an emergency. So, it’s sort of like the standard for a warrant. But there are things that go back and forth each way on this and we need to see the evidence in the days ahead or in the week ahead.

SEAN SPEER: Maybe just one final question for you, a point of clarification, because as you say, most of us are understanding both the Emergencies Act itself and what the government’s invocation means. Can anything be done to challenge the law and the government’s use of it here? If so, what would such a challenge rest on?

DWIGHT NEWMAN: Well, there are four checks on this essentially. So first of those is that this order does now need to be tabled in Parliament. And it is open to Parliament to revoke the emergency if that were the view of Parliament. And that’s probably not going to happen, in the context of indicated support already from one of the other parties. But that is one of the checks on the use of the Emergencies Act power. 

In terms of legal challenges, there could be a legal challenge to whether the invocation of the Emergencies Act or particular steps taken under it is grounded properly within the statute. So, there could be an application to a court around that, or in the context of some particular thing that happens under it. The Emergencies Act is still some—or actions taken under the Emergencies Act, I should say, they are still subject to the Canadian Charter of Rights and Freedoms, obviously subject to reasonable limits on the Charter of Rights and Freedoms, just as we’ve been talking about. In the context of an emergency, if a court were convinced that there was an emergency there, there could be a reason for a reasonable limit. 

But there would be the possibility of particular actions taken under the Emergencies Act being subject to a Charter challenge, something like the provisions around bank accounts. Someone could challenge that under Section 8 of the Charter, which concerns search and seizure. Limitations on assembly could be challenged under Freedom of Assembly. What would happen with those challenges depends a lot on just what the justifications are. And the fourth check on the Emergencies Act, and this is a little bit different, because it’s much down the road, and there’ll be after everything’s all done, but there is triggered a mandatory requirement for an inquiry into what happened with the Emergencies Act

How that inquiry is constituted, and just what happens with that is significant. It doesn’t provide any protection at the moment. But it speaks to history and it speaks even to accountability around what was done during this period, that there would be an automatic inquiry after. That’s, again, a check that’s built into the Emergencies Act. So, there would be those four checks, two of which are legal challenges, one of which is a political slash legal response that’s possible, and one of which is a sort of an accountability to history.

SEAN SPEER: Well, I’ve been speaking to Dwight Newman, Professor of Law at the University of Saskatchewan and author of the new paper published by the Cardus Institute Reasonable Limits: How Far Does Religious Freedom Go in Canada?

Thank you for joining us at Hub Dialogues and sharing insights both about this new paper that listeners should go to the Cardus website and read, and this fast-moving, extraordinary situation we find ourselves in, in the invocation of the Emergencies Act. Thanks so much for speaking with us.

DWIGHT NEWMAN: Thank you for having me.

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