Okay, so I guess I'll get started. I'm Jodi Lazar. I'm a part-time faculty member here. I teach constitutional law and a doctoral candidate. DCL is for Doctor of Civil Law, which is basically what Miguel calls a PhD in law. And I'm here to talk to you about religion, conscience, expression, political thought in short. Some of your fundamental freedoms under the Canadian Charter of Rights and Freedoms. So I just want to thank the law school organizers, Elizabeth Sanford for putting this together, the dean for her support, and to the audience of course for being here. And I just want to add a small caveat before I begin that while I am a member of the Law Society of Upper Canada or the Ontario Bar, none of what I'm saying tonight is legal advice. This is my academic reading of the decisions of the Supreme Court having to do with freedom of conscience expression, religion, conscience, expression, and political thought. So if you encounter any problems in these areas, I urge you to talk to a lawyer. So that said, what will I talk about tonight? Basically I'm going to be talking to you about what it means that we have freedom of conscience and religion, and freedom of expression and political thought in Canada. So what it means that these are constitutional rights or charter rights. And I'll use those terms interchangeably and I'll explain why. So how those questions, how these rights come up in everyday life, how they can be limited by the government, what the court might look at in determining whether a violation on these freedoms, so a law for example, that prohibits a certain type of speech or a religious practice, whether that's legal or not. In other words, whether it's constitutional. So how courts deal with constitutional challenges. And I'm gonna do this in a couple of steps. So my roadmap for tonight, first I'm going to talk about what exactly it means to talk about constitutional or charter rights. So where do they come from? What do they protect us from? What do they not protect us from? Second, I'm gonna talk about a little bit of the, or some of the content of these rights. So the scope of freedom of religion and freedom of expression. And you'll see that they're extremely broad, extremely far reaching rights. They cover a lot of things. In fact, there's not a lot that they don't cover. I'll look at some of the specific activities and practices encompassed by the two freedoms. And some concrete examples set out by the Supreme Court of Canada of practices that are covered, or not covered, by freedom of religion and expression. So third, I will explain how the government is able to block or limit the exercise of our fundamental rights. And then related to this, I'll talk briefly about how courts evaluate claims that government laws or policies have the effect of limiting our rights. So in other words, I'll tell you the types of things that the courts look at in considering whether a limit to our rights is constitutional, whether it's okay or not. And then finally, I'll talk about one or two current examples that have been in the news now or recently relating to freedom of religion, freedom of conscience and religion and freedom of expression and political thought. And I'll try to tease out the issues that the courts would be dealing with if those questions went to the court, which they very well might. And that also should demonstrate that these things are really relevant to everyone in our everyday lives. So I'm gonna try to keep it to about an hour, maybe a little more, and that should leave plenty of time for questions and answers. But it's something I say is not clear if I mumble or you don't understand something I'm saying or I'm speaking too quickly or whatever it is, please let me know, just feel free to interrupt. So one final clarification before I get into it, often when people think about constitutional rights, they think about charter freedoms in particular, they think about the freedoms in the context of criminal law. So the right to remain silent, for example, or the right to be free from unreasonable search and seizure, the right to a lawyer, to a fair trial, et cetera. Those are not what I'm going to be talking about today. Those are criminal law protections and they're known in the constitution as legal rights. The freedoms that I'm talking about tonight are known as fundamental freedoms. So they're contained in a different part of the constitution and they apply in different contexts and situations. So what we're looking at is also referred to as civil rights or civil liberties and not criminal law protections. Okay, so on that, I will get started. So first of all, freedom from what or from who? What freedoms are we talking about? Where do they come from? And what do they protect us from? So when we talk about constitutional rights, not surprisingly, we're referring to the rights contained in the constitution or the Canadian constitution, specifically the Canadian Charter of Rights and Freedoms, which is part one of the Constitution Act adopted in 1982. So our governing law, the supreme law of Canada, all laws, all government action have to conform to the constitution and because of that to the charter. So before 1982, Canadians did not have formal constitutional rights. We had a bill of rights, but it wasn't a constitution and it didn't prevail over all other rights, but we didn't have constitutionally protected rights. So what does it mean to have constitutional rights as opposed to other rights? People talk a lot about rights all the time, the right to know, I heard the other day on the radio about the right to tinker and that was in relation to this kid, the student in the US who was pulled from his class for building a clock and the CBC was talking about the right to tinker. That's not a constitutional right. There's no right to tinker and what I'm gonna say now might surprise some people, there's also no right to health or health care in the Canadian constitution, there's no right to housing, there's no right to property and that's contrary to I think what some people believe and what some people would like to be true, but these are not constitutional rights because they're not contained in the charter. And the Supreme Court has actually been pretty clear on health for example, that Canadians don't have a right to health care, which I think a lot of people might be surprised about. So what does it mean for something to be a charter or a constitutional right? It means obviously a right that is contained in the constitution. So what is the consequence of a right being contained or listed in the constitution in the charter? Well it means that these rights are shielded from government interference and only government interference. So the charter does not protect us from actions by our neighbors unless you happen to live next to the government. It doesn't protect us from landlords unless you rent public housing, which is administered by the government. It doesn't protect you from your employer unless you're a government employee. Maybe there are some of you here. So the charter does not protect us from bad neighbors, bad landlords, bad bosses. What does it protect us from? In short, what constitutes government interference? Well these three things generally speaking are what we refer to as government action. So laws, legislation. Why laws? Because they're created by the government, they're enforced by the government, by government actors like the police, et cetera. State action, same thing. The state might state as in the government, the state might affect our rights through, for example, the police. So that's another way that the government or the state might limit our constitutional rights besides legislation. So police action is subject to the charter. Other state actors, immigration officials, customs and border services, anybody acting on behalf of the government in an official capacity. So third, other state actors as well or institutions or organizations that deliver government services. So school boards, hospitals, these types of organizations acting on behalf of the state are subject to the charter. So if they try to limit our charter rights then the charter is engaged. So for example, a hospital that refuses to provide medical treatment to or a publicly funded medical treatment to an individual based on religious or linguistic grounds, for example, the charter would be engaged. So the charter is engaged in the refusal of treatment or of a blood transfusion, for example, based on religious reasons for at a publicly funded hospital. Another example, a public school board prohibiting a certain type of religious attire that would be covered or protected by the charter. So all of those things bring the charter into play. So what about those non-state actors that I mentioned, your landlord, your neighbor, people who do not act on behalf of the government? Well, for example, an employer, if you don't work for the government and your employer refuses to give you a day off for a holiday or imposes a day off on a holiday that you don't celebrate, that kind of thing, or a landlord refusing to rent to someone who doesn't speak English, those things are not covered by the charter. The charter simply doesn't apply in that situation. So there may be other tools, human rights laws, provincial laws, labor laws, that kind of thing. There's landlord, tenant legislation. So those laws would apply in that situation. But when your landlord discriminates you against, destructs the list, excuse me, discriminates against you based on a charter, right, your religion, the charter does not come into play unless it's the government that's limiting your rights. So, okay, so the charter only applies to the government. I don't wanna make sure people are clear on this because when you say it only applies to the government, doesn't mean that your landlord or your employer don't have charter rights, they do, but they're not engaged in your relationship with those people. Okay, so one final point on what the charter does and where and when it applies and to whom. Because it's part of the Canadian Constitution, the Supreme Law of Canada, the charter applies to all levels of government. So the idea that the government cannot interfere with your rights that applies to the federal government, all provincial governments, municipal governments, and any other sort of government body that you could think of. So in the context of legislation, then federal laws have to conform to the charter, provincial laws, same thing, municipal bylaws, same kind of thing. Same goes for government actors. So police, regardless of who their employer is or what level of government their police force is associated with, so RCMP, clearly subject to the charter, municipal police, same thing. So that's what the charter protects us from. I'm gonna move on to the meaning of these freedoms, freedom of religion and freedom of expression. So broadly speaking, these freedoms that I'm talking about today can be thought about or understood in two different ways. First, freedom under the charter means freedom from coercion. So in other words, the state, the government cannot impose any religion or a form of expression or religion at all on the public. And we're gonna come back to that idea when I give you some examples in a couple of slides. So it's useful here to use the American language because the American constitution is a lot more specific about this. In the US, this conception of freedom from coercion is known as the Establishment Clause because it means that the government cannot establish a religion. In other words, the government is neutral with respect to religion. And the same applies here as well. And second conception, freedom also means that everyone has the right to practice, to manifest their religious or personal or political thoughts and practices freely. So in other words, the government cannot prevent you from practicing your religion, from expressing yourself freely. And in the US, this is called the Free Exercise Clause. Again, I think the language is helpful. So the Canadian constitution doesn't go into as much detail as I said as the American constitution. In Canada, the charter simply says everybody has the following rights, freedom of conscience and religion, freedom of expression and political thought. There's no detail about what that means, about what the government can and can't do, about what you can do. So these two conceptions of freedom, at least insofar as they apply in Canada, were developed by the Supreme Court of Canada in the early decisions interpreting the charter. So only since 1982. So all of this area of law, constitutional law, charter rights, relatively new in Canada. And specifically, these two different conceptions of freedoms, they came out of one of the first major decisions, possibly the first major decision, interpreting the right to freedom of conscience and religion, and that was in the context of Sunday closing laws, which I'll talk about again. But that case was decided in 1985. So when the Supreme Court was first starting to wrap its head around these charter rights, how they shouldn't be interpreted, how broadly, how can they be limited, that kind of thing. And that was only three years after the charter was adopted. But later cases have confirmed that these two concepts of freedom still apply, 30 plus years later, and that they don't only apply to religion, so they apply to other freedoms as well. Okay, so I'm gonna look a little more closely now at the specific freedoms in question, beginning with freedom of religion. So like I said, I'm gonna take you through the content of the right, basically what it protects in a general or a more abstract sense. And then we'll talk about examples. And again, everything I say right now comes directly from the case law, as set out by the Supreme Court of Canada over the past three decades. So first, what does it mean to protect religious freedom? It means that the practice in question, because the right means freedom to manifest one's religious practices, it means that the practice in question must stem from a comprehensive system of faith and worship. Usually it's linked to the divine, or it has some nexus with God or spirituality. So it looks like we're thinking about most major Judeo-Christian or organized religions in North America. The second element of freedom of religion in Canada, the Supreme Court has also said that freedom of religion protects personal and subjective beliefs. So in order for a practice to benefit from charter protection, and I think people might be surprised about this, the practice in question doesn't have to be objectively required by the religion in question. What matters is the person's individual or subjective conception or belief in the practice. So I think this is best understood with an example. So let's say a person is claiming a right to do something like wear a kneecap or a face covering to a citizenship ceremony, for example. A lot of the talk there was about whether Islam requires women to wear these face coverings. But the court has said very clearly that a claimant doesn't need to bring in an expert, an Imam or a scholar of Islamic law, to testify that wearing a kneecap is required for the religion. What matters only is the individual's sincere and subjective belief. And as long as that subjective belief is sincere, as long as it's connected to a system of faith and worship, to a spiritual belief, that's all that matters, that they are sincere and honest in their belief, not that they're claiming the right for some other reason. So if an individual can demonstrate that these three things, a comprehensive system of faith and worship, having to do with the belief in the divine, a personal and subjective belief and a sincere belief, if all of those three things are present, then the practice in question is covered by the charter. And the government is restricted from interfering with that right. Now, I'm sure you all know that these restrictions are not absolute. The government limits our rights all the time. I said I will talk about limits, and I will a little bit later. But the point for now is that in order for a religious practice to be protected by the charter, to be protected from government interference, it has to meet these three elements. So let's look at some examples of freedom of religion claims that the court has dealt with and all of these come again from the Supreme Court. So first, Sunday closing laws, I mentioned this already. I said I would give you another example or an example of the establishment clause, conception of freedom of religion in Canada. So the idea, in other words, that Canadians cannot be coerced by the government into practicing a specific religion or any religion at all. So that first big case from 1985, it dealt with Sunday closing laws in Alberta. And in the decision, the Supreme Court said that the government basically can't have these kinds of laws, religious laws. They can't impose their religious beliefs on the public. Now the government tried to argue that we're not imposing a religious belief. We're simply saying we want a day off of commerce and business and we're gonna make Sunday that day. But the court read the act, the law in question, and it was called the Lord's Day Act. And historically, it was associated with Sunday, the Lord's Day. So it was obviously Christian in origin, religious in origin. And the court said, no, you can't impose the Lord's Day on everybody. Now, this decision is a good example of the Establishment Clause understanding of religion. But it's also a good way, it also illustrates the free exercise question as well. Because Sunday closing laws, in Alberta they impose the religion of the majority on everybody. They also have the effect of preventing certain groups from practicing their beliefs. So Jewish store owners, or at least observant Jewish store owners, couldn't work on Saturdays and also couldn't work on Sundays. So they had to choose between not doing any business at all or violating their own religious beliefs and working on Saturday. So they were effectively prevented from manifesting their own religious beliefs and practices freely. Obviously, we know that's not okay. So that's example number one of an issue that is protected or that engages the charter that the Supreme Court has used to interpret the right. Another example, the right to erect a sukkah on a condominium balcony. Does anybody, do you know what a sukkah is? I'll tell you. A sukkah is a ceremonial hut that Jewish people are required to dwell in. I say dwell in quotes because obviously in Canada it's pretty cold. Sukkah, the holiday usually falls in September or October, sometime in the fall. It's a celebration of the end of the agricultural harvest in the Jewish religion and it has to be outdoors and open to the heavens. So instead of dwelling in it, think what observant Jews do in Canada is they take their meals in it. Now, it says condo balcony there which should get you thinking because I said earlier that the charter doesn't apply to your neighbors or your condo partners or what have you, so that's true. Technically, this case is not a charter case. It was decided under a provincial human rights law, the Quebec Charter, which is not a constitutional law, but the court in dealing with it said this is the exact same way that we would approach a question under the Canadian Charter. So this case established the framework. So the claimants signed a condo agreement saying, okay, we won't put up our sucas. They didn't read the agreement. They did it anyway. A dispute followed. The condo board didn't like it. Long story short, they tried to accommodate each other. They couldn't reach a compromise and the case went all the way up to the Supreme Court. And this is where the court established that claimants of religious rights don't need to bring expert evidence or evidence at all of the objective validity of their belief. So there was a dispute in the lower courts over whether each individual person is required to have their own sucas. There were a number of claimants in the case. They each wanted to put up their own. The condo board had offered to build them a communal sucas in a communal space. And some of them said, no, no, no, that's not good enough. I need to have my own. Logistically, it made sense to not have to go up and down the elevator or what have you with your meals. But some of the people claiming the rights said, no, my faith requires me to have my own sucas. So that person brought a rabbi to the court to testify to say, yes, the Jewish faith requires everyone to have their own sucas. And then the condo board brought another rabbi to say, no, no, no, no, no, no, no, no, no, no, no, no, everyone can share. It's all about being communal and that kind of thing. The Supreme Court drew the line and they said, no, no, no. We're not going to do this. To require objective evidence of religious law would essentially turn the courts into religious arbiters, which is certainly not the role of the secular courts in a secular country like Canada. So that's where the idea that you don't need to prove objectivity of the practice comes from. So basically, as long as the practice in question isn't hurting anybody, and in this case, the sucas were not blocking any like fire escape routes, there was an argument that they were affecting the aesthetic value of the property, but it's only for eight days a year. So the court said, you're not hurting anyone. There's no safety issue. It's fine. You can have your sucas. And then last example of a right covered under freedom of religion is opening prayer at a municipal council meeting. You can probably guess where this is gonna go based on everything I've said so far, but this is a recent case. So I figured I would include it. It's from 2015, April. And in April, the Supreme Court decided that opening a city council meeting with a religious prayer is not surprisingly a violation of freedom of religion. So this was a case out of a small town in Quebec where before each meeting, the mayor and all the city councilors would make the sign of the cross and then the mayor would pause and recite a Catholic prayer. The claimant was an atheist. Clearly he felt uncomfortable with the practice. So he challenged it. It went all the way up to the Supreme Court and the decision was framed as a question of the state's duty of neutrality. So again, this idea that freedom from, this idea of freedom from religious coercion and the idea that the state should not interfere in religion and beliefs. So what's interesting here is that the court said that the state shouldn't, should neither promote nor hinder a particular belief system or a system of non-belief. So I think what's new or different about this case is that the court officially recognized that religious freedom is also the freedom to have no religion. This guy was an atheist. He didn't wanna participate in the prayer, made him uncomfortable and that is fully protected by the right. So the idea here is that in a free and democratic country like Canada, everyone should be able to participate freely in public life, regardless of their belief system or non-belief system. And the municipality actually tried to accommodate him. They tried to change the, they offered to change the procedure. They would go into the meeting, I don't know, say hello or whatever they do first, pause, allow non-believers to leave the room, say the prayer, pause again, go open the door and say, okay, you can come back now. The court said, I don't know, that really does not promote everybody participating freely in public life. It stigmatizes and actually promotes feelings of isolation and exclusion. So no, you can't do this. You can't use your public powers to profess one religion to the exclusion of all others. So bottom line there, endorsement by the government of a particular faith, not okay under the charter. Okay, so that's your very brief survey of freedom of religion. Before we move on to expression, I'm going to mention one other thing. So the title of this talk is freedom of conscience and religion, the wording of section two A of the charter, excuse me, is that everyone has freedom of conscience and religion. But as you may have noticed, none of the cases that I've mentioned so far have talked about conscience as separate from religion or a belief. I mean, even the tests set out by the Supreme Court has to do with a belief in the divine. And that's true, all of the Supreme Court statements thus far, having to do with freedom of conscience and religion have been limited to religious beliefs. So if there is a distinction between religious beliefs and conscientious ones, the court hasn't yet decided any cases based on that. So it's not a clear distinction in Canadian law. Now there is one exceptional reference to freedom of conscience in Canadian law or Canadian law coming out of the Supreme Court of Canada. And that was in 1988, where one judge did weigh in on this question of conscience as distinct from religious belief. So that was in the Morgan-Taller decision, which some of you are probably familiar with, which had the effect of decriminalizing abortion in Canada. And one judge there, Justice Wilson, who was the first and only female judge on the court at the time, also a Dal alumna, she said that the decision to terminate your pregnancy is a moral one, a matter of conscience. And she said that the right to freedom of conscience and religion should extend to conscientiously held beliefs whether or not, or whether they are grounded in religion or in secular morality. So this exists, this idea, it's floating around at the Supreme Court, but her reasons were not definitive in the case, even though the majority of the court agreed that the long question was unconstitutional, it was decided on more procedural grounds. So the Supreme Court has not yet picked up on that line of reasoning. There is one reported case that I've been able to find, but not from the Supreme Court of Canada. And that had to do, I said I was gonna mention prisons, that had to do with an inmate at a federal prison who was a vegetarian for ethical reasons and not based on religious belief. So he simply thought that it was morally reprehensible as I think a lot of people do to eat certain foods, including meat, eggs, fish, and poultry. Now, not surprisingly, Correctional Services Canada has a policy in place, if you have a religious objection to eating certain types of food, they'll accommodate you. So if a prisoner, an inmate is an observant Jew, they will provide him or her with a kosher meal, same thing for other religions as well. Same thing for medical needs, if I don't know, you have a cardiac issue documented by a doctor, maybe they won't serve you red meat, I don't know. They'll accommodate your religious beliefs, they'll accommodate your medical needs, but the Correctional Services did not want to accommodate his conscientiously held beliefs distinct from religion. So a federal court judge, the federal court is a trial court that deals with federal matters, this was a federal prison, so federal court judge, he said that in recognizing religious beliefs, but not moral ones, not moral ones that are not grounded in the religion, the policy ignored the separate right to freedom of conscience. He said that both freedoms, religion and conscience, are protected by the Charter. But as I said, the Supreme Court hasn't pronounced on that yet, so the distinction is not yet part of the general framework, the general legal framework in Canada. I think there's a strong argument for it, but there are also arguments against, like where does conscience end? So we'll see what the Supreme Court says about that if they ever do. All right, so that's your basic introduction to freedom of conscience and religion. I'm gonna move on to freedom of expression and political thought. Okay, there's a lot, a lot of case law from the Supreme Court on freedom of expression, much more than freedom of religion, so I couldn't possibly touch on the entire scope of freedom of expression in this amount of time, so this will be a really basic introduction, so beginning with the reason that the Constitution protects freedom of expression. Now, just like it did with freedom of religion in the early days of interpreting the charter, the Supreme Court set out the basics of the right to free expression, so this first decade of the charter, the decision that I'm referring to was from 1990, so the charter was eight years old at the time, and this was a decision having to do with hate speech and specifically Holocaust denial. So that decision, in that decision, one of the judges discussed the reason that the Constitution protects freedom of expression and she broke it down into two different functions. First, she talked about the instrumental purpose of the right, so the idea that free speech is necessary for the development and advancement of democracy and the political process, so the idea is that everyone should be able to participate freely in the marketplace of ideas, democratic discourse, that kind of thing. And she also, this is Justice McLaughlin at the time, now Chief Justice McLaughlin, she also talked about a second intrinsic purpose to the right, which is the idea that free expression enables individuals to gain self-fulfillment through artwork, for example, through dance or what have you. So that is the reason that the Constitution protects freedom of religion. Now what about the content of the right? What does it protect? Okay, so as it did with freedom of religion, the court has set out a general framework for what is protected by freedom of expression. So first off, in order to benefit from charter protection, the expression in question must have some kind of content. It has to convey some kind of message. So I'll talk in a minute about how expression could not convey a message or a meaning, but that's part one, it has to have content. And part two is that the expression in question must have a form. So I'm not really clear on how expression could not have a form, but these are the two elements that the Supreme Court has identified. So in order for something to be protected speech, it has to have content and form. And the form can really be anything. It could be written or spoken word. I'm expressing myself to you right now. Could be works of art, photographs. I guess those are paintings. Physical gestures like that, like a wave. I'm sure you can think of other physical gestures that express meaning. So what kind of expression is not protected? What about parking a car? Does parking a car convey, does it convey meaning? No, probably not, maybe. Generally no. I'm gonna say generally no parking a car. I mean, unless your meaning is, I wanna go to the store across the street. But I don't think that's what they have in mind. But I think that in some cases, parking a car could have content. So what about an employee of the government who disagrees with the idea that high level bureaucrats or ministers have reserve parking spaces in a parking lot with limited spaces? If that person really disagrees politically with the reserve parking spot, he might as an act of defiance or protest park in the minister's spot. And that becomes more than just parking a car. That becomes political expression. So in certain circumstances, parking a car may actually be protected expression depending on whether it expresses meaning. That's not my example. That's the example from the Supreme Court. And I think it does sound a bit far-fetched, but it's actually not. I know a person who has done something like this. A person who had a used to drive a Jetta TDI. And this was a couple of years ago. So obviously before we heard about Volkswagen, how horrible they are when we thought that they were, when we thought that they were fuel-efficient cars. Part of the marketing for the TDI, the diesel engine, was that it's exceptionally fuel-efficient almost as much as a hybrid. They really did not consume a lot of gas. Gray car, in theory. So some of you may be familiar with the parking lots at Ikea. They have reserve stalls for hybrid vehicles, just like grocery stores and places have reserve parking spots for disabled people and some have for pregnant women. So this person didn't appreciate the idea that his very fuel-efficient car and environmentally friendly car didn't have a reserve parking spot. So he would park in the hybrid spot. So I think that he was trying to express a message about his dissatisfaction with Ikea's preferential parking system. Anyway, so it's not crazy to think that people might express themselves through parking that vehicle. What about violence? Is violence a protected form of expression? The court has been pretty clear about this. The answer is no. So the Supreme Court told us explicitly that a murderer or a rapist cannot claim freedom of expression in defense of their action. And that's even if they're trying to make some kind of point artistically or politically, which I'm sure that some people are. But no, not protected. So in theory, government action, laws, police action policies, where that action has the effect of limiting expressive content in a protected form, basically everything except for violence, the charter applies. So let's look at, oh sorry, parking a car in a bus. Let's look at some examples and all of these like with freedom of religion come from specific decisions. So commercial speech, commercial advertising, is it protected? You might think no. But it is, why? Arguably commercial advertising, commercial expression doesn't contribute to democratic discourse or the political process. It probably doesn't advance individual self-fulfillment in the same way as art. I think some people might disagree with that. If I was an ad executive or a graphic designer for an advertising firm, I hopefully would take pleasure from my work and individual self-fulfillment. But it's not protected for that reason. It's protected because it serves societal values. It protects people by enabling them to make informed economic choices. And that does promote individual self-fulfillment and personal autonomy. So yes, commercial expression is protected. I'm gonna talk in a minute about the case that said that. What about political speech? I think given what we know about the reason that the right exists, it's pretty clear that political speech is protected. So I said that all of these examples come from cases. There's really way too many Supreme Court decisions to refer to one specific case when talking about political expression. But I can tell you some of the stuff that the Supreme Court has said about it. They say that not only is political speech protected, but it's special. It's invaluable in the words of the court. It is essential to democracy. So again, not only is it protected, but political speech lies at the core of the charter right to free speech. So it is high value speech, in other words. Commercial speech, maybe a little less. So that means that when governments try to limit someone's right to express themselves politically, I'm gonna talk about limits in a couple of minutes, they're gonna have to have a really compelling justification for doing that. They're gonna have to demonstrate a really good reason why they have to limit political speech. Okay. What about linguistic expression? Does the charter protect an individual's right to express themselves in their own language? Yes, it does. Or in the language of their choice. So the Supreme Court has told us that language is intimately related to expression. It colors the content and the meaning of expression. So I tried to think of an example of this. And the best I could come up with, I'm from Quebec, is the idea, or the fact that in Canada, or at least in Quebec, probably for French Canadians everywhere, curse words are holy words from the Bible. So when you say them in English and you say them in like the tabernacle, I could not say that in a public lecture in French in Quebec. So in that sense, the language really colors the meaning of the word. And I think that works sort of culturally as well, because in France, those words don't have the same meaning. So for the court, language is the means by which people express their personal and their cultural identity. And it's related to their individuality. So I think it helps to think about linguistic expression or the protection of linguistic expression as protection or freedom from coercion. So I told you that that concept of freedom applies to both religious and expressive freedom. So this is an example of that. The government can't compel people to express themselves in a particular language. And the background to the case that this comes from is helpful here. So these statements were made by the Supreme Court of Canada in a case in the late 80s having to do with Bill 101 out of Quebec, which is the French language charter, some of you probably know about. So the Quebec government in the 1970s, in order to promote the preservation of the French language in Quebec, adopted the French language charter, stone force today. And one of the provisions was that any commercial signage or advertising had to be in French. So everyone knew that they were really trying to suppress advertising in English, but instead of saying you're not allowed to advertise in English, they said you must advertise in French. But then there were exceptions for like Hebrew or Arabic or whatever for like cultural stores or institutions. So really it was targeting English. In other words, it required the businesses to advertise the language of the government's choice and not their choice. And as we know, freedom means freedom from coercion and this was not okay. The court said no. So linguists, they did it anyway, but that's the story for another day. Linguistic expression is protected under the charter. And finally we'll look at one more, the right to silence. And again, like I said earlier, I don't mean the right to remain silent in the criminal context. I mean the right to not speak. And yes, that too is protected by freedom of expression. Because freedom of expression means freedom from coercion. The government cannot force you to say something against your will. They might try and they might try to justify it, but silence itself, in theory, you can't be forced to say something you don't want to. Silence itself is a form of expression. Sometimes I think people in relationships might agree a more powerful one than words. So yes, silence is protected expression. Excuse me, all right. So you might be noticing a theme here. These rights are extremely broad. There's not a whole lot that the charter doesn't protect. Other than violent crimes, there really are no limits to what's protected by freedom of expression and freedom of religion. But we also know that the government can limit these freedoms. So this is where the real work happens. They can limit our rights. The government can limit our rights. By virtue of a different provision of the charter, and this is section one of the charter. So it's interesting, if you think about it, the charter, this beautiful liberal rights document, it opens and it says you have all these rights, but we can limit them and here's how. So the provision tells us that the government can limit our rights provided those limits are reasonable and provided that the government is able to justify those limits in the context of a free and democratic society. So that's really nice language. I'm sure that it took a long time to come up with, but what does it mean? So section one of the charter is quite complicated. It's still in development. I'm not gonna get into the nitty-gritty of it. The legal tests can be complex, but I'm gonna tell you the gist of it, which is that when the government restricts our right through legislation, and it says right there that we're talking about limits prescribed by law. So this applies only to legislation. You can't justify unconstitutional behavior. But when the government tries to limit our rights through legislation, the court will engage in a balancing test. They will balance the beneficial objectives of the legislation in question with its drawbacks, the drawbacks being the negative impact on our rights. So in other words, it will weigh the bad, the charter violation against the public good that the law in question is trying to promote. And it is up to the government. Once someone has established that their rights are indeed being affected, which is not that difficult in most cases, it is up to the government to justify with compelling evidence why it should be permitted to limit those rights for the purpose in mind. So like I said, in constitutional interpretation, this is where the heavy lifting happens. And I think it's best understood with examples. So I'll go through a couple of examples and then we can talk for a minute or two about current things happening and then I'll take Q and A. So an acceptable limit to rights is a photo requirement on an Alberta's driver's license or on an Alberta driver's license or on any driver's license. So it's Alberta because the case came out of Alberta. So this case was brought by the Hutterian brethren. They're like a religious colony that lives in rural Alberta. They've been compared to Mennonites or Amish. It's a small, closed-off, self-sufficient community. They do their own farming, they make most of their clothes. So pretty much self-sufficient. But sometimes they need to drive to town for amenities and especially for medical care. The problem was that they have a religious objection to having their photograph taken, having to do with the second commandment and the prohibition on idolatry. That's all I know about it. But the court accepted that it was a valid religious objection based on a sincere belief in a connection with the divine. So there is an effect or a limit to these people's rights. So then the court looks at the objective of the licensing scheme and the photo requirement and the government of Alberta was able to bring compelling evidence that there was a growing identity theft phenomenon in Alberta and that the source or one of the sources of identity theft was driver's licenses. So their objective here was to prevent, basically prevent, identity theft. A growing problem apparently according to the evidence. So that was the positive objective, pretty compelling objective. I guess they brought good evidence. The negative consequences were that the people in question couldn't drive. And of course they're going to the Supreme Court, got to come up with a really good argument. So they argued that this prevents them from carrying out their religious beliefs because if they don't have a car or if they're not able to drive, that they're not able to take their own car and leave the commune and go and buy whatever supplies they need. But the court said, no, not really. You're able to carry out your religious beliefs. You don't have to have a driver's license. This is really a question of economics. You can hire a driver. So it came down to a question of cost. There was disagreement. It was not a unanimous decision at the Supreme Court. But the majority prevailed. And they said the cost of hiring a driver in those couple of instances where you need it is not a really severe violation. It doesn't prevent you from manifesting your religious beliefs. So the government won and a photo requirement is okay. So you see how they do this sort of balancing test. Another example, a ban on commercial advertising aimed at children. This is one of the first freedom of expression cases. So we know commercial advertising or commercial expression is protected. Quebec adopted this law. I think it was part of the Consumer Protection Act in the late 70s or the 80s. The case went to the Supreme Court in 1988, but it takes a while to work its way up. So what was their objective? Their objective was to protect innocent children from the evils of commercial advertising and commercialism. And they said this is a really important objective and they brought evidence saying that they were doing this in a way that limited rights in the most minimal manner possible. They called it the minimal impairment test. They're impairing the right to freedom of expression, but not completely because they brought evidence that said after a certain age, somewhere between around 12, 13 children older than 12 or 13 are able to distinguish from facts and fiction. They understand that whatever is, I don't have kids, so I'm not familiar with commercial advertising geared toward children, but whatever character from their favorite Disney movie is telling them to buy something, kids over 13. They understand that it's just an ad, it's not real, they don't need to have it. Whereas children under 13, the evidence was less clear. We also know that commercial expression is not as high value expression as say political expression, so it's not the end of the world to limit this kind of expression. So the court was pretty convinced that the objective of preventing the corruption of innocent young minds by the evil advertising corporations was more important than the negative effects on the rights of the advertisers. There was some disagreement there as well. Most of these cases are not unanimous, and the dissent said actually no, the law is really just trying to protect parents from nagging children, but the majority wins, so that is an acceptable limit on our rights. This was a controversial one, because the first time around here the government lost. So broadly speaking, you'd think this is pretty clear. The objective of banning cigarette ads is to reduce tobacco consumption, to increase health, especially among the youth to prevent addiction, that kind of thing. So in the case where the government ultimately prevailed, the court found that those very laudable objectives far outweighed the limit to the free expression, the free speech of tobacco companies. But it wasn't clear, and the case had to happen twice. So the first time the limit was found to be unconstitutional, the government wasn't able to justify the ban. And the reason for that was because they didn't bring any evidence that said that a ban on all sorts of tobacco advertising is more effective than a ban on certain kinds. So the court distinguished between lifestyle advertising, so glossy pictures of really good-looking people, smoking cigarettes on fancy cars, and informational advertising, like brand information, ingredients, that kind of thing. And they said, we totally understand why you would want to ban lifestyle advertising, but maybe there is some value for smokers in knowing the ingredients that go into their cigarettes, the different prices, that kind of thing. So a partial ban was actually not justifiable according to the Supreme Court. Of course that was controversial. Everyone wants the big bad cigarette companies to lose, and they did eventually the second time around when the government adopted a less all-encompassing ban. And that was also not a unanimous decision whatsoever. There was a lot of conflict there, and it's really complicated to figure out what the ultimate result was, because there are so many different opinions. But yes, the government can limit tobacco advertising provided it does it properly. I've got two more. This is about third-party election advertising spending. So spending on election campaigns or contributing toward a candidate's campaign by a third party, so by someone who's not running in the election themselves. The law, the Canada Elections Act, says that a third party is limited, their election campaign spending is limited to $3,000 per riding or per candidate, or $150,000 nationally. And the expression here is expressing oneself through spending money to support your political candidate of choice, which is for the court clear political expression, high value expression. We know political expression is at the core of the right, so you've got to have a pretty good objective and it's got to be a pretty balanced limit. So the objective here is electoral fairness and the creation of a level playing field and basically enabling voters to be well informed. So the idea, what the government argued, was that equality in political discourse outweighed the limit, even though political expression lies at the core of the right. And they were right, because according to the court, because the limit was really small.   So it was just a minor limit. Do you have a question? Yes, how does that compare with the US? I don't know. I mean, I know that there's a lot of controversy about spending limits in the US and... The Supreme Court struck it down as a violation of the First Amendment of Freedom of Speech. Right. All advertising is remissable. Right, so there's a lot of questions about commercial and corporate advertising, especially in the US, but Freedom of Speech in the US is taken a lot more, I'm not gonna say, not that it's taken more seriously, but a lot of Americans are more sort of militant about free speech rights in the US, whereas here we tend to take a bit more of a balanced approach. So the court found that the limit and the objective were balanced in that case. And I'll talk about one more example of a limit because we haven't talked about the press at all and Freedom of the Press is a big part of Freedom of Expression. So this was a question of a policy by the Quebec government restricting the location of TV cameras and where journalists were allowed to conduct interviews in the Montreal courthouse. And CBC on behalf of a group of media outlets sued the government, or sued the Quebec government, the drafters of this policy. Clearly, this is a restriction on Freedom of Expression. They want to be able to express themselves wherever they want. And the court accepts that the presence of journalists, especially in a courthouse, enhances democratic discourse. So it's high value speech. But the objective of the rule was also really significant and the government argued and the court accepted that the objectives were the fair administration of justice within the courthouse the maintenance of the serenity of hearings, maintaining order and decorum near the courtroom and protecting the privacy of litigants before the courts. All things that contribute to public confidence in the justice system and all things that I think we'd probably agree are pretty important. And on the other hand, the ban was not a total ban. It didn't say no journalists in the courthouse at all. They're allowed to attend the proceedings, take notes. They are allowed to record them. They're not allowed to broadcast the recording and they didn't have to stand outside in the minus 40. Really, what they were saying is you're not allowed to bombard the people as they exit the courtroom, which you see all the time on the news, right? Like scrums where you just run up to the people leaving the courthouse. And I think that could probably be extremely overwhelming and uncomfortable for a lot of people, not only in terms of secrecy, but just people who deal with really sensitive issues at the court. So the Supreme Court found that the benefits there outweighed the harm, the limited harm to freedom of expression. Okay, so that's the gist of it. That's the meaning, content, and scope of freedom of consciousness and religion and freedom of expression. So I've also talked about how the government can limit these rights and how the court determines whether or not those limits are constitutional. So I have two more slides. And we have some time. And they're examples of current things in the news that have not been decided by the Supreme Court and that relate directly to freedom of religion on the one hand and freedom of expression on the other. So I'm not a judge and I tend to not wager on how Supreme Court decisions are going to come out. So I can tell you what the issues that might be balanced are in a particular case and maybe speculate based on what courts have said about similar things in the past. Can't pronounce on, can't bet on how they would pronounce. Anyway, I'll run through them quickly and then we can move on to questions. So this is probably a familiar image to most people who have been following the news lately. Excuse me. That is Zunira Ishak, a recent, well, she's now a citizen who challenged the government's policy banning the wearing of the kneecap at the citizenship ceremony. This has stirred up a ridiculous amount of debate and took up a lot of attention during the election. So people who have been following the story will probably know that the reason she was able to get citizenship is because both the federal court and the federal court of appeal struck down the, struck down, that's law speak for said it's not okay, it's unconstitutional, whatever, the ban, the policy. The policy wasn't contained in a law, it's not in the immigration act, it's not in the regulations. It was a ministerial policy adopted by virtue of the immigration act, which says that citizenship judges have the discretion to decide how to administer the oath. So the case was not about whether it was, whether banning the kneecap at a citizenship ceremony is a justifiable limit. The court didn't engage in any of that section one balancing. They just said that according to the law and the administrative framework right now, that policy was not allowed. But the court, the case is currently pending leave at the Supreme Court of Canada. So some of you might know that not every case gets to go to the Supreme Court, you have to ask for permission and the judges decide whether they're gonna hear your case. They get hundreds of applications every year and they hear about 80 cases every year and this is pending leave. So we don't even know if the government is going, if the current government is going to continue to defend the policy or maybe they're just gonna abandon it. Different government then decided it. But if it goes to the Supreme Court then presumably the court will rule on the charter issue. So we can talk about that. Based on what we've learned in the past hour, we know that the charter protects freedom of religion and it's a really broad protection. We know that in order for a practice to be protected, it has to have, it has to do with a conscientious belief or sorry, a belief in, has to be related to a comprehensive system of worship or faith. It has to do with a belief in the divine. There's no argument here. Islam is a popular recognized religion in North America, in Canada. We know that she is subjective in her belief. I mean, I don't know that, but the court accepted that. So I'm not making any speculations. Just talking about the record of the case. There's no question that she is sincere in her belief. There was a question, at least in a lot of the debate that I heard about this and that I read, that only certain sort of sects of Islam require the Nekab. And a lot of people were saying that Islamic law doesn't actually require it. It's not an objectively required practice. Therefore, she shouldn't be able to do it. But as you know now, it doesn't matter if the religious law in question requires you to practice or exercise the practice in question. As long as you sincerely believe that it's going to bring you closer to your connection with God, that's all that matters. So I think that she's got a pretty good claim here that that policy, whether we like it or not, is directly affects her protected freedom of religion. So the question is whether the government can justify reasonably that it's in the interest of a free and democratic society to limit her right to wear the Nekab to the citizenship ceremony. And I think this is where all the talk about security and identification comes into play. But the case that I read was also very clear that there is no issue regarding her identification. She's not refusing to identify herself. She will go in and lift her veil and show a female immigration officer or clerk or whatever that she is who she says she is. She just doesn't want to stand in public in a group of a hundred people and have to take off her veil. And also a lot of citizenship ceremonies are televised or they're on the news. So she didn't want that kind of exposure. So we know that there's no question of identity or identification, there's no question of threat to security. So I'm not sure how the government would be able to compellingly justify the requirement in the interest of a free and democratic society. That's what they would have to do. I'm just gonna talk about the second example and then we can come back to it, okay? So we can talk about that if you like. That's my take on it. It's not an opinion. I just would like to, I would be curious to see how the government would try to limit her right. And second, also to do with the election, this is Parker Dunham. He might be familiar to a few of you. He's new to me, because I'm not from Nova Scotia, but he is a political blogger, journalist in from Cape Breton, for he's been active for like 15 years. Anyway, that is his tweet from the day of the election. He tweeted his ballot. He voted for Monica Dutt of the NDP, who lost. And the Canada Elections Act says that it is illegal to show a marked ballot. It doesn't say that it's illegal to photograph your ballot. It doesn't say that it's illegal to tweet your ballot. It just, or put it on Facebook or whatever. It just says it is illegal to show your marked ballot. Now we know that political expression lies at the very core of freedom of expression. Clearly he's contributing to, well, I mean, I think he's trying to start a controversy, but clearly he's contributing to political discussion and debate. People might say, hey, Parker, why'd you vote for her? And he'll say, well, I like their policy on daycare and whatever. The point is we also know that even though it's high value expression, the court will allow limits to it, provided the limits are justifiable. And from what I've read, the reason that the law prevents people from showing their marked ballot is to prevent vote buying. So if you can't show anyone your marked ballot, then you can't show someone or prove to someone how you voted, which means that no one can buy your vote. No one can make you vote under duress or coerce you into voting for a particular party. And I think that's a pretty important objective to maintain the integrity of the electoral system.  But my understanding is that this is something that historically did go on in Canada, especially in rural writings where people would trade votes for a ride or whatever. I don't know. But apparently this is a problem. The question would be whether the government is able to bring compelling evidence. And by compelling evidence, I don't just mean a strong argument. They actually have to bring evidence, scientific studies or concrete evidence saying, look, this is proven, this weren't proven. I mean, they don't have to prove beyond a reasonable doubt, it's not criminal law, but they have to bring pretty conclusive proof that this is actually a problem that they're going to prevent. So, he says, we should tweet our ballots, we should encourage young people to vote, et cetera. Government says, no, we don't wanna encourage vote buying and that kind of thing. So that's the debate. If it goes to the court, I'd be very curious to see what happens. Elections Canada has said they're gonna take this seriously, oh, and he did this two years ago as well in the provincial election, but he wasn't charged because the wording was actually unclear. It didn't say you're not allowed to show your ballot, it just said that people are not allowed to take photographs at the polling station, which was, well, I mean, he did, but anyway, the RCMP looked into it and said, we're not gonna charge you, but then they went and changed the law. And I think that the Nova Scotia Elections Act now says the same as the Canada Elections Act, which says you're not allowed to show your marked ballot. So I think he wants to do like a test case. I mean, he wants to get in trouble, he wants to bring his challenge to court. So that's everything I promised. So I'm done now, and thank you, and I'll take questions. Are the questions recorded as well? You have a question? Yeah. In the NICA issue, I can see that there's not much for balance in the citizenship context. You're not going to go conflict, but what about if, since it's raised to where the person is working, say, at the government employee, and the situation becomes somewhat similar to the Quebec case, where they're having a prayer, and I think the court would handle the NICA issue. In that context, we have a conflict between value and beliefs, in terms of the people who are in favor of their friend. So a couple of years ago, under the former Quebec government, they campaigned on the idea of doing precisely that, a Quebec Charter of Values, which would have prevented public servants or public employees from wearing religious garb, including face covering, but not just that, like a head covering and a large cross was really wide in scope. And I think it would be sort of case by case. I think the government would have to bring evidence that people do feel uncomfortable going to a person at the driver's license kiosk wearing a NICAB. I don't know that someone would feel like they were being coerced into a state religion if an individual who worked at the DMV wore one. I mean, when the, there was a lot of talk during the Quebec Charter of Values debate about women wearing hijabs, which don't cover your face, and this kind of thing in daycares and the idea that it was pad for children or, I don't know. But I can tell you that what a lot of constitutional lawyers and scholars were saying at the time was that despite public support for that kind of charter, there are really strong arguments that it's unconstitutional. I don't know what kind of compelling evidence the government could bring, especially when Canada prides itself on being a really open multicultural space. So, I don't know, I would like to know what the courts do say, yeah. I'm just kind of confused about the idea that someone is not, how the charter can cover children and suggesting, isn't the charter, or something? No. The charter applies to anyone in Canada or under sort of Canadian authority. I mean, it's, hmm? It's your day, it's time to hear your opinions. Well, I mean, it applies on Canadian soil. So, I mean, if I took your argument to its logical conclusion, the police could discriminate against permanent residents, taxpayers, visitors, but not citizens. So, it would have a sort of unfair effect if it didn't apply across the board. It doesn't apply to Canadians in, I don't know, 10 buck two, it doesn't apply. So, it's a territorial thing, not an individual thing. So, it applies to just the same way that our laws apply to people here. You know, just because you're not from here doesn't mean that you don't have to obey the law. So, in turn, if you're arrested here, well, you have to obey our law, but we'll give you due process according to the Canadian Charter. Yeah. I wonder if we can ask, how many people here will ever read their charter? Uh, we can ask? Question, how many here read the charter? I had it before I went to law school. It's the most adored, that's the word for it. Revered? Revered, that's a better word. Instrument in our history, according to Levite, is polling well above anything else. Parliament or the Constitution of 1867, the Charter. And the poll also showed that a vast majority of Canadians have never read it. So, it's a strange country. That doesn't, it's true, actually I heard a piece on the radio recently, an interview with a Constitutional Law Scholar at the University of Ottawa about this idea that Canadians should know their constitutional rights. You talk to, you ask a Canadian about the Constitution, they'll say, oh, the First Amendment, but no. Right, sure. So, it's true, I mean, maybe it should be, I don't know, taught more comprehensively in high schools, it's a good point. Yeah, any other questions over here? Yeah. I think you were talking about government legislation that goes down to the lowest level of government. Now, city councils quite often pass legislation that really interferes with citizens' rights. So, is that a charter issue? Well, municipal councillors are a municipal government, their ability to pass laws, they're under provincial jurisdiction, but yes, I mean, can you give me an example? Well, in Nova Scotia, you have a lot of spot developments in this situation, between the developer, the council is really setting aside all of the bylaws, land usage, everything, and giving the developer the right to put, usually, high-rise building in a small neighborhood. Now, I don't point out all the details, but that really interferes with all kinds of things we assume is a right, the right to peace, for example, the right to enjoy your own property, and that, and that, and that. But in Nova Scotia, the municipal act says that you can't appeal that kind of decision on the part of the council. So, basically then, there's no way you can appeal. Well, I mean, I think it was a charter thing, and I would think legally, you could appeal it on the charter base, it's not on the basis of the legislative of the city councils. Okay, so we're not gonna get into municipal law, because it's not my area of expertise, except when they say you can't appeal, there are probably other recourses that you can take, but it's funny that you say the right to peace or the right to enjoyment of your property, or that kind of thing, because that relates to what I said at the beginning of my talk, which I think people have a lot of misconceptions about the types of things that the charter protects, and it does not, in fact, protect property, unlike the US, which has a right to property. The charter does not, it's not that it's easier, but it's a lot less controversial here, for example, for the government to expropriate property, whereas in the US, that's a huge deal, and there's all kinds of constitutional doctrine about takings and expropriations. So I think we just need to be careful in using the word rights, so sure, it's unfortunate that that's happening, and I guess the best way to deal with it would be through the democratic process and voting for someone else or getting together as a group, I don't know, but I guess my answer is that they're not constitutional issues, as long as the municipal government is acting within its authority under the provincial law. Not very satisfying, I know. There's another question over here. All rights are equal, under the charter? Yes. But there is a hierarchical part to it, and I actually understood, it's probably not gonna go to the Supreme Court of Canada, but I'm interested in your thoughts on Trinity Western. Yeah, I figure that you were referring to that. A lot of people, some constitutional scholars will argue that there is a hierarchy of rights, so I've heard that argument at a conference before that the right to equality is now becoming more important than the right to freedom of religion. Does everyone here know what the Trinity Western debate is? So Christian University in British Columbia that wants to open a law school, it's a private university, and in order to go there, you have to sign a covenant that says that you won't participate in, among other things, sexual acts outside of a marriage between a man and a woman, so basically a strong argument that it's discriminatory against gay people. And the issue, and why it's a question of whether one right is more important than another, is because it's pitting the right to equality against the right to freedom of religion. I don't want to get too much into Trinity Western because it's not something that I've thought too much about from an academic perspective. A lot of other people at Dell have. But in theory, no, there's no hierarchy of rights. The court's going to have to sort it out the way that, and it probably will go to the Supreme Court of Canada, I mean, maybe. Will we say that Burke rescinded his certification of the school at the law school? No, but pending the results of all the litigation because now it's gonna go to the, it's going to appeal here and the Ontario courts just ruled on it against the school, so it'll likely be appealed there as well, so I think that the certification was withdrawn pending the results of the litigation. I'm not sure, but I think this is the kind of case that would go to the Supreme Court, so it would be really interesting to see what happens. But in theory, to answer your question, no, there is no hierarchy of rights. It does happen that rights will come into conflict, the right to equality here versus the right to freedom of religion. But in theory, no, and I think that this case will probably, or at least here, it was decided on an administrative framework and not using the same balancing test, or I think actually the judge did both. It's not really clear to me. It's a little bit different, though, isn't it against the pretty Westerns all about the law society saying we're not going to accept somebody who signs something like that, which is slightly different? Okay, well, exactly. So it was considered an administrative decision by an administrative actor, the law society being the administrative actor, so it's not analyzed this same way as legislation. But I think the judge here also said just in case the law society is considered a government actor, we're also going to look at it this way. So I think he did do the section one balancing test, but I don't really want to say anymore about Trini Western, other than no. No, there is no hierarchy of rights under the charter. Can I just go over here? Yeah. I wonder if you need speech in the context of the limits in place of freedom of expression, like where does that fit in? I'm thinking of the Charlie Hebdo cartoon which is probably not a particularly, it's probably a too complicated example, but I guess I'm just wondering what limits and how you can place limits on hate speech for that? Yeah, I mean, it's criminal legislation, it's in the criminal code, there are provisions against hate speech, but hate speech is limited and it's justified under that section one justification test, but the definition of hate speech in the criminal code, at least it's very small, it's advocating for genocide, like really, really, it's really hate speech. It's not, it's, I mean, you can threaten people, that's a, it might be, there might be a criminal prohibition on threats, but the speech is not the same, so hate speech is limited, it's inciting people to do violence, but it is in the criminal code, and as for Charlie Hebdo, whether drawing pictures of the prophet is, I mean, I don't think that that would, that would count as hate speech in Canada, but I'm not sure, I think it would depend on your, what it means to draw a picture of the prophet. Some people said that it was blasphemy and sort of degrading the religion itself and other people understood it as degrading individual Muslims, so I think it depends who you ask, but yeah, we have hate speech rules, that case that I mentioned at the beginning about Holocaust denial, that would fall under hate speech, incitement to do violence, incitement to genocide, that kind of thing, is illegal and justified, yes. I just wanted to comment that this is not a minor issue involved in this, this is a serious way of corrupting the electoral process, for example, if you permit anyone to go into a ballot by themselves with their iPhones or whatever and take a picture of their ballot before they bring it back out, excuse me, and give it to someone who controls you, they have proof how you vote, then you get your $10. That's exactly what I, yeah. This has more damage to corruption than the old Nova Scotia Mickey of Rome. Right. Yeah, no, I don't disagree, that's why I think that. I'm not going to get Mickey's or Rome. I think that people are probably a little flippant in dismissing this idea that vote-fying could be a serious problem. I think not only in terms of here's your $10, but in an employment context, let's say, with your boss or, oh, well, who did you vote for? Oh, yeah, show me, and that kind of thing. I mean, they were trying to give me one-mark ballot, and I'll take any election. You can pass that around and you keep getting that one ballot back, and this is the same thing, but it's only photographic, and it's sort of cute. The bottom gets a picture of the paper for the first time for a long time. Yeah, no, I think it would be really interesting to see where it goes, to see what kind of evidence the government is able to bring that, that it's a problem. I guess we have time for one or two more, if, yeah. The Constitution protects against government interference with the freedom of religion. Yes. Going back to the Sukkha, not the Comperminium Association, that was a private sector that was trying to ban the direction of Sukkha. Yeah. Well, I mentioned it didn't fall under the Charter, but when the, When the, Well, it was the Quebec Charter of Human Rights and Freedoms, which is not quite constitutional, but they used the same test, the same framework, and the judge at the Supreme Court said expressly, this is the test that should be applied under the Canadian Charter as well. But private sector can discriminate or impede religious expression? Well, I mean, there are statutes in place in every province, human rights acts, employment acts. They're not constitutional documents. They're different tools, yeah. Okay. How did the police lose? What's that? How did the police lose? Like how did the Supreme Court have a decision, what, I don't know, maybe 10 years ago? Yeah, no, it was not 10 years, it was like 2011, or 2010. It wasn't a Supreme Court of Canada decision, it was by the Supreme Court of Nova Scotia, which is a trial court. Never went up to the Supreme Court of Canada. Pardon? Yeah. But it was justified in the interests of a free and democratic society. I mean, I'm not gonna get into the details, but it was justified under section one. Yeah, thank you.


Ngamihi atu kia koutou. Greetings to everybody from the far north, from Ngāti Kahuwe up there in the far north and also from Māori studies. Now, this project that I've been heading for, well, since 2009 is about constitutional transformation in this country. The name we have Mātika Maiautearoa was given to us by an elder, a kaumātua from Taranaki who was brought on as an expert onto the project. And this diagram you can see here is actually the logo for our group that was given to us by the young people. Because when you're looking at constitutional matters it's probably not my generation that's going to be doing this stuff or even my children's generation, it's going to be the grandchildren who are going to be doing the nuts and bolts of this. So we asked them to visualise and then put into logo form a country that, in which the balance was restored and I'll talk to you about what I mean by the balance restored. And this diagram talks about from the top to the bottom, that's teka maui, the North Island and how when you've got it balanced properly where Papatūinuku the Mother Earth has properly looked after and able to look after people how everything from right down beneath Papatūinuku right up to the heavens is all in balance. So what was the problem that we had to address? It's one that Māori have had for over 150 years. And that is our constitutional powerlessness. And a body that I serve on as a result of being the chairperson of my iwi is National Iwi Chairs Forum. At the moment there are about 70 iwi chairs that serve on that body. We come together to try and address common issues that we're all confronting and to try and help each other and find solutions over it. And what we found after a few years which we'd known for a long time was that we could not at the end of the day make any real difference to the injustices, the inequalities, the denial of rights, land and resource confiscations that go on to this day, the racism, the deep, deep bitterness amongst our people over the imposition of the Treaty settlements process, we could not address them. And that was making our job extremely difficult, extremely frustrating. The one thing that Jane was talking about about the TPPA was just one of many of the issues that we just kept running into a brick wall over and no amount of talking or trying to be nice or anything like that actually produced any difference. It just ran us round and round in circles. And so the matter of constitutional transformation which is quite different from constitutional change, constitutional change is when you fiddle with what's already there and try and make things a bit better.  So this decision about the need for constitutional transformation is not new in Maridom. We had three huge hui's gatherings in the 1990s that said this had to be done, but then of course we didn't have the resources to do it. Then along came the foreshore and seabed and that really motivated us to come on and hurry up and do the job. So it's required to reinstate the balance between mana Māori motuhake. Now it's often referred to as Māori sovereignty, but it's what was protected under te tiriti o waitangi and that is our power and authority within this land as the original people of this land and we are responsible for this country in that respect. So it's the balance between that and British kāwanatanga. The British governance that we agreed that they could have over British subjects and over other immigrants and that balance was set out very, very clearly in te tiriti and if that balance had been upheld we wouldn't have the horrific problems we do in the Māori world at the moment. So we were looking for constitutional transformation that would restore that balance and get you back to that diagram that the young people came up with. So the research question became what constitutional model for Aotearoa would restore the balance between mana Māori and the British kāwanatanga and be based upon, now there are three very important areas that had to be based on. First of all there is tikanga. Now tikanga is often translated into English as protocol but in actual fact it's our legal system. It's the first legal system of this country and it is the one that remains to this day even though it's not formally recognised. Kawa is another term in the north we use tikanga and the other is where they use kawa. So that's why I've got both of them there. It is our Māori philosophy and law. And then this incredibly important document that colonising historians, colonising governments have chosen to say it doesn't exist but I'm afraid it does. He haka putanga o te rangatira tanga o o new terini, the Declaration of Sovereignty of New Zealand of 1835 and I know that most New Zealanders don't even know that this exists. However the Waitangi Tribunal held a hearing and came out with a report confirming that this is fundamentally important to this country. And that stated that the sovereignty of this country lies in the hapū, not the iwi, the bigger organisations but in the hapū. And that was signed in 1835 accepted by the British Crown and then the consequence of that was the treaty that allowed British immigration in here on the condition that the haka putanga remained and was upheld and that the British governed their own people. But we also looked at other indigenous human rights instruments which enjoy a wide degree of international recognition and in particular there is the United Nations Declaration on the Rights of Indigenous People but we also looked at the Sami examples, the Bolivian examples in particular. Now the research team itself was established in 2009 by the National Iwi Chairs Forum. It is called, as I said, Matikimai Aotearoa, it means rise up. Rise up and get yourself going to get things sorted. We are the independent working group on constitutional transformation. It is convened, this is a really odd thing. The National Iwi Chairs told me I had to chair it because they needed somebody who could cope with the academic intellectual type stuff that was needed but really the expert in this field is Moana Jackson and he is what I would call a legal philosopher. Would that be right, Jane? Magnificent mind on this man. Now the membership was the best constitutional or Maori law brains that we had in Maoridom. When we asked Iwi to send us their experts, guess what, they sent us a whole lot of Western trained lawyers and it wasn't actually what we wanted but hey, they were very, very good. What we wanted was those trained in Maori law so we had to co-op those. We asked the urban Maori authorities to come in. We ended up with a total of 40 members. They came and went because unlike university projects that we do, research projects that we do, this was all voluntary. However, in the development of the model there were really clear rules. We had to attend gatherings throughout the country which were convened to discuss this new constitutional model. Each hui we would introduce the topic briefly and then work on a questionnaire in groups and it took us a year to develop that questionnaire. Asking simple questions like if you could make a decision about your life tomorrow, what would that be based on and how would you make those decisions because that's all a constitution is. It's a set of rules that you all agree to abide by. How you have to ensure that Maori can develop the model and then we had to report our engagement and progress back to the National Iwi Chairs Forum. It meets four times a year and our final research report was originally due in 2013. We ended up doing it in 2016. Funding provided mainly by a philanthropic source and by Ngapai o Te Maramatanga here. It was the JR Mackenzie Trust that funded this in the end as Jane was saying, you get on and do the work and the funding comes after. The work to date, I'm out of time, 252 hui around the country because you've got to engage all of Maori. All hui were transcribed, questionnaires analysed. The basis of the final report, the interviews with individual experts to check the interpretations. This took over a year. Report was tabled February this year where six possible models were proposed and recommendations made for further work. All the recommendations were accepted. We are now having further hui around the country. And the report, there it is. That's the report there. 125 pages of the most beautifully written constitutional arguments. Ki ora.