View cases - Stewart McKelvey

- 93 -173 Therefore, it must be decided if it is possible to reconcile the provisions ofthe declaration of co-ownership, which is binding on the parties and which preserves theco-owners’ right to the peaceful enjoyment and free disposition of their property andtheir right to personal security, with Mr. Amselem’s freedom of religion. This Court’scomment in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 877,is relevant in this regard:2004 SCC 47 (CanLII)A hierarchical approach to rights, which places some over others, must beavoided, both when interpreting the Charter and when developing thecommon law. When the protected rights of two individuals come intoconflict, . . . Charter principles require a balance to be achieved that fullyrespects the importance of both sets of rights.174 Furthermore, any reconciliation of rights must take into account the fact thatcertain rights and freedoms in the Quebec Charter, including s. 6, which is at issue here,are self-limiting. Professor Chevrette, supra, at pp. 468-69, presented two ways to lookat this situation in light of s. 9.1:[TRANSLATION] What is the effect of s. 9.1 on ss. 6 (enjoyment and freedisposition of property) and 9 (professional secrecy), given that s. 6 alreadyprovided that the guarantee existed “except to the extent provided by law”and s. 9 provided that it could be overridden by “an express provision oflaw”? Can it be argued that s. 9.1, which was enacted after these provisions,supersedes them and replaces the legislature’s discretion with the testsestablished by s. 9.1?It seems obvious that this is not the case. The clarity and theexceptional nature of these provisions make them special standards thatprevail over the subsequent general standard of s. 9.1. Since “the principlegranting priority to special legislation, or to the more recent enactment, isat best a guide or presumption of legislative intent”, the second principlemust apply, as the legislature intended that s. 9.1 should reduce rather thanincrease the precedence of the sections subject to s. 9.1 over any other law.This is, however, far from the end of the matter. Within the first chapterof the Charter, there is a superimposition of certain guarantees. Somesections are not self-limiting, although they are still subject to s. 9.1; othersare. Thus, an expropriation could be justified under s. 6 itself, in that it