Volume IV, Issue II (April 2006) - Columbus School of Law

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$Connected Minds,Connected Cultures:\ Connected Minds$

the Canadian Charter must be especially flexible when it comes to working out the relationshipbetween administrative law and constitutional law.” 572Turning to the facts in Multani, Justice LeBel concluded that:… in the case of an individualized decision made pursuant to statutory authority,it may be possible to dispense with certain steps of the [Oakes] analysis. Theexistence of a statutory authority that is not itself challenged makes it pointless toreview the objectives of the act. The issue becomes one of proportionality or,more specifically, minimal limitation of the guaranteed right, having regard tothe context in which the right has been infringed. 573As such, Justice LeBel concluded the Council of Commissioners had not shown that the kirpanban was justified and met the constitutional standard.Justices Deschamps and Abella, while concurring in the conclusion, took a different approach toresolving the issue. It was their view that the case was more appropriately decided through anadministrative law analysis, thereby reviewing the reasonableness of the decision. The justicessuggested that “the prohibition on the wearing of a kirpan cannot be imposed without consideringconditions that would interfere less with freedom of religion.” 574 By applying the code of conductliterally rather than sufficiently considering the right to freedom of religion and theaccommodation measure proposed which posed little or no risk, the justices concluded that theschool board made an unreasonable decision. 575COMMENTARYThe Supreme Court of Canada’s decision is first and foremost an important victory for freedomof religion. In this regard, there is confirmation from the Supreme Court that the principles thathave been developed in such cases as Big M Drug and Amselem are not to be relegated toconstitutional history. The Charter protects the rights of Canadians to entertain their religiousbeliefs and to openly declare those beliefs without fear of hindrance or reprisal. Canadians alsohave the right to manifest their religious beliefs through worship and practice as well as byteaching and dissemination, and to be free from discrimination because of their religious beliefs.Religious observances should be accommodated to the point of undue hardship.The decision is also important for its dictum that there is a role for educators to play inengendering tolerance for others’ culture and religion in Canadian society. As Canada continuesto develop as an increasingly multicultural society, there will be further debates about theboundary between the “public” and “private” domain, and particularly where the two converge.Canadian society is also facing political and social changes. Religious organizations and theirmembers are being forced to respond to these changes.572 Ibid. at para. 152.573 Ibid. at para. 155.574 Ibid. at para. 99.575 Ibid.98
Turning to its impact on courts and administrative tribunals, the decision provides some importantguidance on the interplay between freedom of religion and other socially important values. Aswas conceded by the claimant, the Court confirmed that the freedom of religion can be limitedwhen the individual’s freedom may cause harm to or interfere with the rights of others. However,any limitation has to be done through a reconciliation of the competing rights which must beachieved through a constitutional justification. The Court’s decision makes the importantdeclaration that safety and other concerns must be unequivocally established before aninfringement of freedom of religion is justified.Administrative tribunals and bodies that govern many important areas of our daily lives regularlyencounter decisions involving competing rights. The Multani decision provides importantguidance for them and for the courts as to the proper relationship between administrativedecisions and the protection of fundamental rights and freedoms in Canada. Given the Charter’smere two decades of existence, both courts and administrative tribunals have not yet clearlydefined the exact boundaries between various rights and freedoms contained therein. As the scopeof one’s rights and freedoms can be affected through the decisions of administrative tribunals in avariety of situations, it is very important for there to be a clear standard of review in order toensure that Charter rights are minimally infringed.As noted above, the majority of the Supreme Court of Canada determined that the administrativelaw standard of review was insufficient when determining whether a Charter right infringementhas occurred and whether such an infringement is justified. The Court determined that aconstitutional analysis was required in these situations because “the rights and freedomsguaranteed by the Canadian Charter establish a minimum constitutional protection that must betaken into account by the legislature and by every person or body subject to the CanadianCharter.” 576It is generally recognized that in reviewing an administrative tribunal’s decision, courts will pay“curial deference” within the tribunal’s areas of specialized expertise regardless of whether thereis a “privative clause” protecting the decision from judicial review. “Curial deference” means thatthe courts ought not to intervene in a tribunal’s decision where the tribunal’s knowledge,experience, and expertise with the subject matter, places it in a better position than the reviewingcourt to make the proper determination of the issues involved. 577 A “privative clause” may befound in the enabling legislation for an administrative tribunal, insulating the tribunal’s decisionsfrom judicial review.Notwithstanding the legislature’s attempt to shield the decisions of administrative tribunals fromthe preying eyes of the courts through the use of privative clauses, reviewing courts have tendedto regard privative clauses as just one factor to look at in determining the appropriate standard ofreview. The other factors include: statutory rights of appeal; expertise of the tribunal; the purposeof the enabling legislation as a whole, and the impugned provision in particular; and the nature ofthe problem. 578 Based on the review of these factors, the reviewing court will determine where576 Ibid. at para. 16.577 Melanie Aitken, Russell Cohen and Mariana Silva, “Curial Deference to Administrative Tribunals”(Paper presented to the The Law Society of Upper Canada Special Lectures 2001 Constitutional andAdministrative Law).578 Guy Pratte and Michelle Flaherty, “Appeals, Judicial Review and Standard of Review” in Public LawReference Materials, Law Society of Upper Canada, 48 th Bar Admission Course, 2005 at 127ff.99
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INTERNATIONAL JOURNAL OF CIVIL SOCI
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Letter from the EditorDear Readers,
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TABLE OF CONTENTSIJCSL EDITORIAL BO
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ARTICLESTHE ROLE OF THE ISLAMIC WAQ
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‘a bewildering array of the good,
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[a]lthough civil society organizati
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to integrate economic development a
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duty.’ 55 In contrast to zakāt,
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of such venerable educational insti
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avoiding the appearance of impiety,
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…’ 101 Throughout the Islamic w
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partisan judiciary, a vigilant pres
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number of awqaf for myriad public p
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made over to the plundering hands o
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prescribed by law. 159 Like the 192
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property is not a waqf property or
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VIII. REFERENCESA. Articles/BooksAh
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Meidinger, Errol E, ‘Environmenta
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STUDENT ARTICLESINTERNATIONAL INSTR
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interest for the Balkan, minorities
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dimension is emphasized with Articl
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The Copenhagen document deals with
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Historically, the 1946 Constitution
Page 47 and 48: service, or sometimes 239 special f
Page 49 and 50: This position by the Greek governme
Page 51 and 52: a member of the civil state, entitl
Page 53 and 54: Civilization" with headquarters in
Page 55 and 56: term "vinozhito"(rainbow) could pos
Page 57 and 58: declare the party as unconstitution
Page 59 and 60: The cases analyzed below, exemplify
Page 61 and 62: ECHR, and based upon this analysis,
Page 63 and 64: Jabuka in particular, recognized as
Page 65 and 66: the minority still face problems in
Page 67 and 68: BibliographyBooks:BLACK’S LAW DIC
Page 69 and 70: Vlassis Vlassidis, Veniamin Karakos
Page 71 and 72: THE DIFFERING TAX TREATMENT OF INVE
Page 73 and 74: …any person who, for compensation
Page 75 and 76: the assets under management. 437 Th
Page 77 and 78: As a preliminary matter, a taxpayer
Page 79 and 80: Commissioner further summarized the
Page 81 and 82: number of itemized returns. These t
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Page 85 and 86: operate as a fraud or deceit upon t
Page 87 and 88: Policy ConsiderationsIn light of th
Page 89 and 90: more advantageous to address altern
Page 91 and 92: STUDENT NOTESBUILDING CONSUMER CAPA
Page 93 and 94: CASE NOTESC A N A D I A N S U P R E
Page 95 and 96: minimum constitutional protection t
Page 97: objective of ensuring safety in sch
Page 101: tribunals to ensure that an appropr
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Volume IV, Issue II (April 2006) - Columbus School of Law

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