SUPREME COURT OF CANADA

Transcription

1 SUPREME COURT OF CANADA File No (ON APPEAL FROM A JUDGMENT OF THE QUÉBEC COURT OF APPEAL) BETWEEN: LOYOLA HIGH SCHOOL and JOHN ZUCCHI - and - ATTORNEY GENERAL OF QUÉBEC - and - CANADIAN COUNCIL OF CHRISTIAN CHARITIES EVANGELICAL FELLOWSHIP OF CANADA CHRISTIAN LEGAL FELLOWSHIP WORLD SIKH ORGANIZATION OF CANADA ASSOCIATION OF CHRISTIANS EDUCATORS AND SCHOOLS CANADA CANADIAN CIVIL LIBERTIES ASSOCIATION APPELLANTS (Respondents) RESPONDENT (Appellant) CATHOLIC CIVIL RIGHTS LEAGUE ASSOCIATION DES PARENTS CATHOLIQUES DU QUÉBEC FAITH AND FREEDOM ALLIANCE ASSOCIATION DE LA COMMUNAUTÉ COPTE ORTHODOXE DU GRAND MONTRÉAL FAITH, FEALTY AND CREED SOCIETY HOME SCHOOL LEGAL DEFENCE ASSOCIATION OF CANADA FACTUM OF THE INTERVENER CANADIAN CIVIL LIBERTIES ASSOCIATION Henri A. Lafortune Inc. Tel.: Fax: lafortune@factum.ca 2005 Limoges Street Longueuil, Québec J4G 1C4 L

2 and - SEVENTH-DAY ADVENTIST CHURCH IN CANADA SEVENTH-DAY ADVENTIST CHURCH QUÉBEC CONFERENCE CORPORATION ARCHIÉPISCOPALE CATHOLIQUE ROMAINE DE MONTRÉAL L ARCHEVÊQUE CATHOLIQUE ROMAIN DE MONTRÉAL INTERVENERS _ Guy Du Pont, Ad.E. M e Jean-Philippe Groleau M e Léon H. Moubayed Davies Ward Phillips & Vineberg LLP 26 th Floor 1501 McGill College Avenue Montréal, Québec H3A 3N9 Tel.: Fax: jpgroleau@dwpv.com lmoubayed@dwpv.com The Canadian Civil Liberties Association M. Ed Van Bemmel Gowling Lafleur Henderson LLP Suite Elgin Street Ottawa (Ontario) K1P 1C3 Tel.: Fax: ed.vanbemmel@gowlings.com Agent for Intervener The Canadian Civil Liberties Association M e Mark Phillips M e Jacques S. Darche Borden Ladner Gervais LLP Suite de la Gauchetière Street West Montréal, Québec H3B 5H4 Tel.: (M e Phillips) Tel.: (M e Darche) Fax: mphillips@blg.com jdarche@blg.com Counsel for Appellants M e Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza, Suite Queen Street Ottawa, Ontario K1P 1J9 Tel.: Fax: neffendi@blg.com Agent for Appellants

3 - 3 - M e Benoit Boucher M e Caroline Renaud M e Renée-Claude Ouellet M e Dominique Legault M e Amélie Pelletier-Desrosiers Bernard, Roy (Justice Québec) Suite Notre-Dame Street East Montréal, Québec H2Y 1B6 Tel.: Fax: benoit.boucher@justice.gouv.qc.ca caroline.renaud@justice.gouv.qc.ca renee-claude.ouellet@mels.gouv.qc.ca dominique.legault@justice.gouv.qc.ca amelie.pelletierdesrosiers@justice.gouv.qc.ca Counsel for Respondent M e Pierre Landry Noël & Associés 111, rue Champlain Gatineau, Québec J8X 3R1 Tel.: Fax: p.landry@noelassocies.com Agent for Respondent M e Barry W. Bussey Suite 1 43 Howard Avenue Elmira, Ontario N3B 2C9 Tel.: Fax: barry.bussey@cccc.org Canadian Council of Christian Charities Eugene Meehan, Q.C. Supreme Advocacy LLP Suite Gilmour Street Ottawa, Ontario K2P 0R3 Tel.: ext. 101 Fax: emeehan@supremeadvocacy.ca Agent for Intervener Canadian Council of Christian Charities

4 - 4 - M e Albertos Polizogopoulos M e Don Hutchinson Vincent Dagenais Gibson LLP Suite Dalhousie Street Ottawa, Ontario K1N 7E4 Tel.: Fax: albertos@vdg.ca Evangelical Fellowship of Canada M e Robert E. Reynolds Suite Sherbrooke Street West Montréal, Québec H3H 1E8 Tel.: Fax: rreynoldslaw@gmail.com Christian Legal Fellowship M e Albertos Polizogopoulos Vincent Dagenais Gibson LLP Suite Dalhousie Street Ottawa, Ontario K1N 7E4 Tel.: Fax: albertos@vdg.ca Agent for Intervener Christian Legal Fellowship Palbinder K. Shergill, Q.C. Shergill & Company Suite th Street Surrey, British Colombia V3W 1R1 Tel.: Fax: pkshergill@shergilllaw.com Word Sikh Organization of Canada M e Marie-France Major Supreme Advocacy LLP Suite Gilmour Street Ottawa, Ontario K2P 0R3 Tel.: ext. 102 Fax: mfmajor@supremeadvocacy.ca Agent for Intervener Word Sikh Organization of Canada

5 - 5 - M e Ian C. Moes M e André Schutten Kuhn LLP Suite South Fraser Way Abbotsford, British Colombia V2T 1W5 Tel.: Fax: imoes@kuhnco.net andre@arpacanada.ca Association of Christians Educators and Schools Canada M e Marie-France Major Supreme Advocacy LLP Suite Gilmour Street Ottawa, Ontario K2P 0R3 Tel.: ext. 102 Fax: mfmajor@supremeadvocacy.ca Agent for Intervener Association of Christians Educators and Schools Canada M e Robert W. Staley M e Ranjan K. Agarwal M e Jack R. Maslen Bennett Jones LLP Suite 3400 One First Canadian Place Toronto, Ontario M5X 1A4 Tel.: Fax: staleyr@bennettjones.ca agarwalr@bennettjones.com maslenj@bennettjones.com Catholic Civil Rights League Association des parents catholiques du Québec Faith and Freedom Alliance Association de la communauté copte orthodoxe du grand Montréal M e Sheridan Scott Bennett Jones LLP World Exchange Plaza, Suite O Connor Street Ottawa, Ontario K1P 1A4 Tel.: Fax: scotts@bennettjones.com Agent for Intervener Catholic Civil Rights League Association des parents catholiques du Québec Faith and Freedom Alliance Association de la communauté copte orthodoxe du grand Montréal

6 - 6 - M e Blake Bromley Eugene Meehan, Q.C. M e Thomas Slade Benefic Law Corporation Suite Georgia Street West Vancouver, British Colombia V6G 2Z6 Tel.: Fax: bbromley@beneficgroup.com Faith, Fealty and Creed Society M e Marie-France Major Supreme Advocacy LLP Suite Gilmour Street Ottawa, Ontario K2P 0R3 Tel.: ext. 102 Fax: mfmajor@supremeadvocacy.ca Agent for Intervener Faith, Fealty and Creed Society M e Jean-Yves Côté Côté Avocats inc. 461 de Dieppe Street Sainte-Julie, Québec J3E 1C9 Tel.: Fax: jyc@illico.ca Home School Legal Defence Association of Canada Eugene Meehan, Q.C. Supreme Advocacy LLP Suite Gilmour Street Ottawa, Ontario K2P 0R3 Tel.: ext. 101 Fax: emeehan@supremeadvocacy.ca Agent for Intervener Home School Legal Defence Association of Canada

7 - 7 - M e Gerald D. Chipeur M e Sean Kelly M e Grace Mackintosh Miller Thompson LLP Suite th Avenue South-West Calgary, Alberta T2P 3V4 Tel.: Fax: gchipeur@millerthomson.com mackintosh.grace@adventist.ca Seventh-day Adventist Church in Canada Seventh-day Adventist Church Québec Conference Eugene Meehan, Q.C. Supreme Advocacy LLP Suite Gilmour Street Ottawa, Ontario K2P 0R3 Tel.: ext. 101 Fax: emeehan@supremeadvocacy.ca Agent for Intervener Seventh-day Adventist Church in Canada Seventh-day Adventist Church Québec Conference M e Milton James Fernandes M e Sergio G. Famularo Famularo Fernandes Levinson inc Notre-Dame Street West Montréal, Québec H3J 1M8 Tel.: Fax: fernandes@ffl-law.com famularo@ffl-law.com Corporation archiépiscopale catholique romaine de Montréal L archevêque catholique romain de Montréal M e Nadia Effendi Borden Ladner Gervais LLP World Exchange Plaza, suite Queen Street Ottawa, Ontario K1P 1J9 Tel.: Fax: neffendi@blg.com Agent for Intervener Corporation archiépiscopale catholique romaine de Montréal L archevêque catholique romain de Montréal

8 - i - TABLE OF CONTENTS Canadian Civil Liberties Association Page PART I STATEMENT OF FACTS... 1 PART II QUESTIONS IN ISSUE... 2 PART III STATEMENT OF ARGUMENT... 2 I. Freedom of Religion and Bodies Corporate... 2 A. The Purpose and Scope of Freedom of Religion... 2 i. The Personal Aspect of Religion... 3 ii. iii. The Associational and Expressive Aspects of Religion... 3 Freedom of Religion and the Contextual Approach... 4 B. Corporations Can Invoke Freedom of Religion... 5 i. Types of Corporations That May Benefit From Freedom of Religion... 5 ii. The Determination of the Corporation s Purpose... 7 II. Fundamental Rights in the Administrative Process... 8 A. The Review of Administrative Decisions Impacting Fundamental Rights... 8 B. The Applicable Standard of Review is Correctness... 9 PART IV SUBMISSION ON COSTS... 10

9 - ii - TABLE OF CONTENTS Canadian Civil Liberties Association Page PART V ORDERS SOUGHT PART VI ALPHABETICAL TABLE OF AUTHORITIES... 11

10 - 1 - Statement of Facts FACTUM OF THE INTERVENER CANADIAN CIVIL LIBERTIES ASSOCIATION 1. At the heart of this appeal is whether Loyola High School ( Loyola ), a religious nonprofit corporation, can invoke freedom of religion as a constitutional guarantee 1 to support its claim for an exemption from teaching the Ethics and Religious Culture course (the ERC ) as it was designed by the ministère de l Éducation, du Loisir et du Sport of Québec (the MELS ). 2. Loyola does not attempt to control the content of ERC, nor does it challenge its constitutional validity. It asks permission from the MELS to teach its own version of ERC, in a manner that is consistent with its mission as a Catholic school. It asks that the MELS give due consideration to its confessional nature when determining whether its proposed program is equivalent to ERC. 3. This appeal is of particular importance to the CCLA as it could determine and clarify for the first time whether and when a body corporate can invoke freedom of religion against the State. This is an increasingly pressing issue at the national and international levels. The CCLA views this case as an ideal opportunity for this Court to establish clear guidelines for the analysis of corporate claims to freedom of religion. This appeal will also allow this Court to reiterate the significant weight to be given to fundamental rights in the administrative decision-making process PART I STATEMENT OF FACTS 4. The CCLA does not take a position on the facts in dispute Freedom of religion is entrenched at s. 2(a) of the Canadian Charter of Rights and Freedoms (the Charter ) and s. 3 of the Charter of Human Rights and Freedoms (the Québec Charter ). While this factum will refer to the Charter, it is the CCLA s view that its analysis also applies to the Québec Charter.

11 - 2 - Questions in Issue PART II QUESTIONS IN ISSUE 5. Loyola invokes freedom of religion in support of its request to be exempted from teaching ERC, pursuant to the equivalent program provisions of the Regulation Respecting the Application of the Act Respecting Private Education (the Subject Regulation ). In this context, the questions of interest to the CCLA are: (a) (b) whether a religious entity is entitled to invoke freedom of religion; and the weight to be given to fundamental rights in the administrative decisionmaking process and the judicial review thereof PART III STATEMENT OF ARGUMENT I. FREEDOM OF RELIGION AND BODIES CORPORATE 6. The idea that a religious entity may effectively benefit from freedom of religion faces inherent obstacles. Freedom of religion is intrinsically tied to the individualistic notions of conscience and belief, which perhaps are not easily attributed to a body corporate. However, any such conceptual obstacles should not operate to prevent freedom of religion and correlative fundamental freedoms (such as freedom of expression and association) from accomplishing their true purpose. A. THE PURPOSE AND SCOPE OF FREEDOM OF RELIGION 7. In Hunter v. Southam Inc., [1984] 2 S.C.R , this Court determined that Charter rights and freedoms should be defined according to their purpose, and in particular, the interests they are meant to protect. The underlying purpose of the Charter right at issue can be determined with a review and analysis of the cardinal values it embodies. 8. With respect to freedom of religion, this Court has held that this right is comprised of both a personal, individualistic aspect and a collective, associational aspect. 2 Intervener CCLA s Book of Authorities, herein after I.B.A., Vol. I, Tab 6.

12 - 3 - Statement of Argument i. The Personal Aspect of Religion 9. The purpose and content of freedom of religion has been widely analyzed by this Court, leading to an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom Its content hinges primarily on the notion of sincerely held belief, as it consists in the freedom to undertake practices and harbour beliefs, having a nexus with religion (Amselem, par. 46). It is thus rooted in an individual s innermost beliefs, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. (Ibid.) ii. The Associational and Expressive Aspects of Religion 11. While freedom of religion is first and foremost inherently personal, this Court also held almost thirty years ago in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 ( Big M, I.B.A., Vol. II, Tab 10) that freedom of religion also includes collective, associational and expressive aspects, such as the right to manifest religious belief by worship and practice or by teaching and dissemination (p. 336). 12. In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (I.B.A., Vol. II, Tab 11), this Court expressly acknowledged that freedom of religion [ ] has both individual and collective aspects and expressed the view that legislatures are justified in being conscious of the effects of legislation on religious groups as a whole, as well as on individuals (p. 781). 13. More recently, in Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 657 ( Hutterian, Respondent s Book of Authorities, Vol. I, Tab 3), this Court insisted on the importance of the collective and associational aspects of religious rights, as [freedom of religion] incorporates a right to establish and maintain a community of faith that shares a common understanding. [ ] Religion is about religious beliefs, but also about religious relationships [ ] (par ). 3 Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 ( Amselem ), par. 40, Appellants Book of Authorities, Vol. II, Tab 39.

13 - 4 - Statement of Argument 14. Finally, in Congrégation des témoins de Jéhovah de St Jérôme Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 ( Congrégation, I.B.A., Vol. I, Tab 3) this Court referred to the primary importance of the right to freely adhere to a faith and to congregate with others in doing so and consequently reiterated the right of individuals to associate freely in order to exercise their freedom of worship, which is a fundamental, collective aspect of freedom of religion, and to organize their churches or communities (par. 9 and 68) The jurisprudence of this Court also demonstrates that various fundamental freedoms are intimately related and can be exercised simultaneously. For instance, in R. v. Sharpe, [2001] 1 S.C.R. 45 (I.B.A., Vol. II, Tab 12), this Court expressed the view that freedom of expression is vital in a free and democratic society, and referring to an American decision, qualified it as the matrix, the indispensable condition, of nearly every other form of freedom (par. 23). This is particularly true in this case as freedom of expression, much like freedom of association, is vital to the exercise and meaningful practice of religion and the protection of same. iii. Freedom of Religion and the Contextual Approach 16. The content of freedom of religion defined over the years by this Court need not and should not be revisited in this case. The CCLA accepts and supports the notion that freedom of religion is mainly personal and linked to the concept of sincerely held belief. However, the CCLA further submits, given this Court s jurisprudence and the very nature of some religious practices, that freedom of religion includes a collective, associational and expressive aspect as well. 17. This definition of freedom of religion must be applied to the particular set of facts of any given case. This Court favours this contextual approach in order to bring into sharp 4 In Congrégation, the CCLA made, inter alia, the following submissions: Religious practices have an associational aspect. Members of the same religion are entitled to come together to worship communally and, to that end, to build, possess and maintain a place of worship. Institutions that are created for communal religious purposes play an important role in maintaining the life and health of religious communities.

14 - 5 - Statement of Argument relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it The issues surrounding Loyola s claim in this appeal bring into sharp relief the associational and expressive aspects of freedom of religion. B. CORPORATIONS CAN INVOKE FREEDOM OF RELIGION 19. The above principles strongly suggest that bodies corporate must be permitted to assert claims to religious freedom, under certain circumstances. 20. To begin with, a corporation, with standing, can obtain a declaration that a law or a measure is of no force or effect when, pursuant to section 52 of the Charter, it is inconsistent with constitutional guarantees including religious ones. This general rule, applied in Big M, protects a corporation against prosecution pursuant to an unconstitutional law. 21. The more challenging question is whether corporate bodies can assert freedom of religion in the administrative process, or claim a remedy pursuant to s. 24 of the Charter (or s. 49 of the Québec Charter) on the basis of a breach of their freedom of religion. 22. The CCLA submits that despite the potential absence of some components typically associated with the idea of individual belief, certain types of corporations should still, in appropriate circumstances, be permitted to invoke freedom of religion. In particular, where the corporation is putting forward a consensus position of sincerely held belief(s). i. Types of Corporations That May Benefit From Freedom of Religion 23. In setting out to determine whether a corporation should benefit from freedom of religion, the CCLA respectfully submits that courts should be mindful of the judicial definition and purpose of this guarantee. They should also acknowledge that the 5 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p , I.B.A., Vol. I, Tab 5.

15 - 6 - Statement of Argument Charter must be adapted and responsive, in order to preserve the full scope of the guarantee at stake, including in this case the associational and expressive aspects of freedom of religion. 24. Therefore, a court must consider specifically whether a corporation can enjoy such freedom in a manner that is consistent with the purpose of this constitutional guarantee, notwithstanding the corporation s lack of self-awareness or cognitive faculties. The CCLA submits that a body corporate may enjoy and invoke freedom of religion if, in light of its purpose, the body corporate primarily serves as a vehicle through which its individual members exercise their own freedom of religion, expression and association. 25. Thus, it is submitted that a court should first determine whether a body corporate s primary purpose is religious or philosophical, including whether it is a vehicle for worship, or the dissemination or teaching of religious beliefs and practices. A body corporate that meets this criterion should benefit, in its own capacity, from freedom of religion as an extension and embodiment of its individual members own fundamental rights. 26. This is consistent with this Court s approach in the context of labour disputes. Indeed, this Court has held that a union s freedom of expression is directly related to individual workers right to associate to further common workplace goals under section 2(d) of the Charter. 6 Through this functional approach, the rights of individual members are inseparable from the vehicle used in furtherance of the effective exercise of their freedoms. 27. The proposed approach also finds echoes in the law of other jurisdictions. For example, the European Court of Human Rights ( ECHR ) holds that religious communities can invoke freedom of religion, guaranteed under Article 9 of the European Convention on Human Rights. According to the ECHR, when a church body or an association with a religious object asserts a freedom of religion claim, it does so 6 Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, at paragraphs 29 and following, I.B.A., Vol. I, Tab 1.

16 - 7 - Statement of Argument on behalf of its members. Thus, European jurisprudence on human rights recognize the individual and collective aspects of freedom of religion. 7 Similarly, in the United States, courts have recognized the free exercise rights of churches and other religious entities In short, allowing certain types of bodies corporate to claim the protection of freedom of religion acknowledges that they are, in reality, often an extension of individuals and communities who exercise their freedoms under their umbrellas. Correlatively, it follows that for-profit corporations will face significantly more difficult challenges in attempting to rely on freedom of religion. 9 ii. The Determination of the Corporation s Purpose 29. A corporation s purpose must be determined based on the facts and the context of each case. More importantly, lower courts must be mindful of this Court s warning in Amselem that they should avoid any kind of religious inquisition (par. 52). Therefore, Courts should focus on the existence of evidence as to the primary or overriding object of the corporation, including the worship, dissemination or teaching of religious ideas or practices, and on whether this object is advanced in good faith The ECHR and the European Commission of Human Rights (the Commission ) acknowledged that religious rights may have a collective aspect and that, accordingly, decisions have been rendered to recognize that a Church or ecclesiastical body may exercise such rights on behalf of its members. The ECHR and the Commission recognized that the believer s right to freedom of religion encompasses the expectation that the religious community, including its organised structures, will be allowed to function peacefully, free from arbitrary State intervention. On the contrary, it was held that a for-profit corporation cannot make freedom of religion claims. See, for example: Council of Europe/European Court of Human Rights Research Division, Overview of the Court s case-law on freedom of religion, 19 January 2011 and updated on 31 October 2013, at paragraphs 20 and 21, I.B.A., Vol. II, Tab 14; Kustannus oy Vapaa Ajattelija AB et al v Finland (1996), 22 EHRR 69, I.B.A., Vol. I, Tab 7. Conestoga Wood Specialities Corp. v. Sec'y U.S. Dep't of Health & Human Servs., No , 2013 (3rd Cir. 2013), at p. 22 ( Conestoga, I.B.A., Vol. I, Tab 2). However, the jurisprudence on whether a secular for-profit corporation can make such claim is about to be settled. On 25 March 2014, the Supreme Court of the United States will hear oral arguments in two cases, Sebelius v. Hobby Lobby Stores (Docket No ) and Conestoga. Both cases challenge the federal Affordable Care Act requirement that certain employer-provided healthcare plans offer contraceptive coverage at no additional costs to their employees. However, this Court has held that the interpretation of Charter should be made in context rather than in the abstract. Since this appeal does not raise the question of a profit-seeking corporation asserting a religious claim, this issue should be left for another day where the issue has been argued and the Court has the benefit of an evidentiary record.

17 - 8 - Statement of Argument 30. It follows that when the body corporate s religious purpose and function is established, and when the body corporate s claim is consistent with its asserted purpose, the body corporate should be deemed capable of benefiting from freedom of religion. 31. This framework is essential for the effective protection of freedom of religion, particularly its collective, associational and expressive aspects. The effective protection of individual rights and freedoms requires that they be given full application even when exercised under the umbrella of a body corporate. II. FUNDAMENTAL RIGHTS IN THE ADMINISTRATIVE PROCESS 32. This Court recently held that the judicial review of administrative decisions that have an impact on Charter rights must be made in accordance with an administrative law approach, rather than an Oakes analysis. The CCLA stresses that this jurisprudential development should not result in diluting the importance of fundamental rights in the administrative decision-making process or the rigour with which these rights are protected. A. THE REVIEW OF ADMINISTRATIVE DECISIONS IMPACTING FUNDAMENTAL RIGHTS 33. In Doré v. Barreau du Québec, [2012] 1 S.C.R. 395 ( Doré, Respondent s Book of Authorities, Vol. I, Tab 16), this Court reached a consensus on the proper analysis to review an administrative decision that has an impact on fundamental rights, preferring an administrative law approach to an Oakes-type analysis. 34. This case is an opportunity for the Court to reiterate that this administrative law approach should not result in the dilution of fundamental rights, and that their protection should not be left to the whim of particular administrative decision-makers. The CCLA seeks to ensure that fundamental rights including freedom of religion do not become meaningless and ineffective as a result of their not being given their full weight by administrative-decision makers. 35. Since the early days of the Charter, it has been recognized that an administrative decision-maker exercising discretion granted under a statute must do so in light of

18 - 9 - Statement of Argument constitutional guarantees and the values they reflect. 10 This principle flows from the general proposition that legislatures cannot do through others what it cannot do itself. 36. In Doré itself, the Court stated that administrative decisions are always required to consider fundamental values. The Charter simply acts as 'a reminder that some values are clearly fundamental and cannot be violated lightly' (par. 35). 37. McLachlin S.C.J. s (as she then was) comments in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 (I.B.A., Vol. I, Tab 4) are apposite: The Charter is not some holy grail which only judicial initiates of the superior courts touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it (par. 70). 11 B. THE APPLICABLE STANDARD OF REVIEW IS CORRECTNESS 38. In this case, the Superior Court applied the standard of correctness, whereas the Court of Appeal applied a reasonableness standard. The CCLA submits that a lesser degree of deference is warranted where: (a) (b) (c) (d) the impugned decision is of broad application including because it affects a larger number of individuals and extends beyond the facts of a particular case thus giving it some of the attributes of a norm; the nature of the question in dispute is closer to the legal end of the spectrum between legal and factual questions and is of importance to the legal system as a whole; the decision-maker does not have any particular or specialized expertise in the appreciation of Charter issues; and there is no privative clause in the enabling legislation Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, at par. 152, per LeBel J., I.B.A., Vol. I, Tab 8. See also, for example, Slaight Communications Inc. c. Davidson, [1989] 1 R.C.S ( Slaight ), at p , I.B.A., Vol. II, Tab 13, where this Court declared that the Charter applies to a labour arbitrator exercising delegated powers. Affirmed in Nova Scotia (Worker s Compensation Board) v. Martin, [2003] 2 S.C.R. 504, at par. 29, I.B.A., Vol. II, Tab 9.

19 Statement of Argument 39. In any case, the CCLA respectfully submits that where an administrative decision fails to give proper consideration, if any, to its impact on fundamental rights, or fails to apply a proportionality test, Courts should not hesitate to intervene PART IV SUBMISSION ON COSTS 40. The CCLA seeks no costs, and asks that it not be liable for costs to any party PART V ORDERS SOUGHT 41. Wherefore, may it please the Court to: ALLOW the CCLA to present arguments not exceeding ten minutes; and ORDER that the CCLA will seek no costs, and that it not be liable for costs to any party. ALL OF WHICH IS RESPECTFULLY SUBMITTED Montréal, March 10, 2014 Guy Du Pont, Ad.E. M e Jean-Philippe Groleau M e Léon H. Moubayed Davies Ward Phillips & Vineberg LLP

20 Alphabetical Table of Authorities PART VI ALPHABETICAL TABLE OF AUTHORITIES Jurisprudence... Paragraph(s) Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R Conestoga Wood Specialities Corp. v. Sec'y U.S. Dep't of Health & Human Servs., No , 2013 (3rd Cir. 2013) Congrégation des témoins de Jéhovah de St Jérôme Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R Doré v. Barreau du Québec, [2012] 1 S.C.R ,36 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R Hunter v. Southam Inc., [1984] 2 S.C.R Kustannus oy Vapaa Ajattelija AB et al v. Finland, (1996) 22 EHRR Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R Nova Scotia (Worker s Compensation Board) v. Martin, [2003] 2 S.C.R R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R ,20 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R R. v. Sharpe, [2001] 1 S.C.R Slaight Communications Inc. c. Davidson, [1989] 1 R.C.S Syndicat Northcrest v. Amselem, [2004] 2 S.C.R ,10,29

21 Alphabetical Table of Authorities Doctrine Council of Europe/European Court of Human Rights Research Division, Overview of the Court s case-law on freedom of religion, January 19, 2011 and updated on October 31,