Case Comment Volume 38:1

Out of Place: Comment on Committee for the Commonwealth of Canada v. Canada

Table of Contents

Out of Place: Comment on Committee for the

Commonwealth of Canada v. Canada

Richard Moon*

In Committee for the Commonwealth of
Canada v. Canada, which concerns the restric-
tion of political leafleting in Dorval Airport,
the Supreme Court of Canada takes the oppor-
tunity to set out a general approach to the issue
.of public communication on state-owned prop-
erty. Three different approaches to the right of
access to state property are put forward. The
judgments of Chief Justice Lamer and Justices
L’Heureux-Dub6 and McLachlin offer differ-
ent approaches to the problem of fitting an
issue involving the distribution of communica-
tive power into the established model of free-
dom of expression adjudication. The members
of the Court try to fit the access issue into the
established framework and to contain its dis-
tributive character by giving general or partial
priority to the state’s use of its property. How-
ever, the general rules and categories that the
members of the Court rely on to limit judicial
review of the state’s property use and the ade-
quacy of the opportunities for public commu-
nication, are unclear and unstable.

Chief Justice Lamer gives general priority
to the state’s use of its property by limiting the
protection of subsection 2(b) of the Charter to
expression that is consistent with the state’s
property use; yet the consistency standard is
vague and flexible and its application is easily
influenced by a desire to accommodate impor-
tant access claims. The distinction between
public and private forums, relied on by
L’Heureux-Dub6 and McLachlin JJ., rests on a
general finding about the compatibility of pub-
lic communication with the state’s use of the
particular property. But the location of the line
separating public forums (the balancing of
competing interests) and private forums (the
giving of priority to the state’s property use)
will depend on the decision-maker’s views and
assumptions about the need for space for pub-
lic discourse in general and in specific circum-
stances.

Dans Comitj pour la Rdpublique du
Canada c. Canada, qui porte sur la restriction
de la distribution de ddpliants A caract~re poli-
tique A l’adroport Dorval, Ia Cour suprame du
Canada prend l’occasion d’6tablir des prin-
cipes gtntraux sur la question des communi-
cations publiques dans un lieu dont le gouver-
nement est proprittaire. Les opinions du juge
en chef Lamer et des juges L’Heureux-Dub6 et
McLachlin different dans leur fagon d’instrer
la question de la distribution du pouvoir de
communication dans la jurisprudence d~jA 6ta-
blie sur Ia libert6 d’expression. Les juges
tentent de contenir son caract~re distributif en
accordant une priorit6 g~n~rale ou partielle A
l’utilisation par le gouverement de sa pro-
pri~tt. Cependant, les r~gles et catgories que
les membres de la Cour utilisent dans leur ana-
lyse du droit de propritt6 gouvernemental sont
vagues et instables.

Le juge en chef Lamer donne gtntralement
priorit6 au droit de proprit6 du gouvernement
en limitant l’6tendue du paragraphe 2b) de la
Charte a l’expression qui est compatible avec
la fonction ou destination principale du lieu.
Cependant, le critire de compatibilit6 est
vague et flexible; sa mise en application est
facilement influencae par le ddsir de permettre
certaines formes d’expression jugdes impor-
tantes. La distinction entre << tribune publique >> et << tribune priv~e >>, avanc~e par
les juges L’Heureux-Dub6 et McLachlin,
depend d’une dcision sur la compatibilit6 de
la communication publique avec l’usage gou-
vememental d’une propri6t6 en particulier. La
demarcation entre tribunes publiques (peser
les intirts rivaux) et tribunes privtes (donner
priorit6
l’usage par l’Etat de sa propri~tt)
ddpendra des prsomptions et opinions du
1dgislateur sur le besoin de tribunes pour le
discours public dans des circonstances g~n6-
rales et particuli~res.

* Associate Professor, Faculty of Law, University of Windsor.

McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.L 204
Mode de rdf6rence: (1993) 38 R.D. McGill 204

1993]

CASE COMMENTS

Synopsis

Introduction
I.

The Judgment of Lamer C.J.C.
A. Summary of Judgment
B. Discussion of Judgment

II. The Judgment of McLachlin J.

A.
Summary of Judgment
B. Discussion of Judgment

Im. The Judgment of L’Heureux-Dub6 J.

A. Summary of Judgment
B. Discussion of Judgment

Conclusion

Introduction

In 1984, officials at Dorval airport in Montreal prevented three members
of the Committee for the Commonwealth of Canada from communicating their
political views to passers-by in the public areas of the airport. The Committee
members were told that their activities (of distributing leaflets and approaching
passers-by) violated a federal airport regulation, which provided that

no person shall
(a) conduct any business or undertaking, commercial or otherwise, at an airport;
(b) advertise or solicit at an airport on his own behalf or on behalf of any person;

(c) fix, install or place anything at an airport for the purpose of any business or

or

undertaking.

The Committee members brought a motion in Federal Court seeking a dec-
laration that under the Canadian Charter of Rights and Freedoms’ they had a
right to express themselves in the public areas of the airport and that this right
had been violated by the airport authorities. Justice Dub6 of the Trial Division
of the Federal Court granted the declaration.3 He considered that the open areas

tion a person could engage’in these activities if “authorized in writing by the Minister.”

‘Government Airport Concession Operations Regulations, SOR/79-373, s. 7. Under the regula-
2Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
3Committee for the Commonwealth of Canada v. Canada, [1985] 2 F.C. 3, 25 D.L.R. (4th) 460
(T.D.). This American approach to the access issue seeks to isolate a special category of property

B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].

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of the airport were a “public forum” so that the government’s ban on soliciting
and advertising in these areas was a restriction on freedom of expression. He
found that this restriction did not represent a substantial and compelling purpose
and so could not be justified under section 1 of the Charter. The case was
appealed to the Appeal Division of the Federal Court.4 Hugessen and MacGui-
gan JJ. (Pratte J. dissenting) agreed with the trial judge that the airport regula-
tion was an unjustified restriction on freedom of expression. They did not agree,
however, with the trial judge’s adoption of the American public forum doctrine.5
Instead they considered that any restriction on communicative access to a state-
owned property would violate subsection 2(b) of the Charter and would be
unconstitutional unless justified under the terms of section 1.

The case was further appealed to the Supreme Court of Canada.6 In a judg-
ment released in January 1991, the seven members of the Court who heard the
appeal disagree about whether the regulation restricting advertising and solicit-
ing covers the respondents’ activities. Four of the judges, L’Heureux-Dub6,
McLachlin, Cory and Gonthier JJ., think that the restriction covers political
communication of the sort engaged in by the respondents. The other three
judges, Lamer C.J.C., LaForest and Sopinka JJ., think that the regulation
restricts only commercial activities and not political communication. However,
all the members of the Court agree that the airport authorities’ interference with
the respondents’ communication of political views, whether or not supported by
the regulation, was a restriction on the respondents’ freedom of expression that
could not be justified under section 1.

In the course of deciding the immediate issue of whether the restriction on
communication in the airport violates the Charter, the members of the Court try
to set out a general approach for dealing with future disputes concerning com-
munication on state-owned property. Three different approaches to the issue of
communicative access are put forward.

Chief Justice Lamer (Sopinka and Cory JJ. concurring on the access issue)
considers that the question of whether an individual has a right to communicate
on state-owned property should be resolved under subsection 2(b) and should
depend simply on whether the particular communication is consistent or com-

“public forums” – which by tradition or designation have been open to the public for commu-

nication. The government may restrict communication on a public forum only for substantial and
compelling reasons. On all other properties (non-public forums) the government may restrict com-
munication provided the restriction is content-neutral. For a discussion and criticism of the Amer-
ican public forum doctrine, see R. Moon, “Access to Public and Private Property under Freedom
of Expression” (1988) 20 Ottawa L. Rev. 339.
4Comnitee for the Commonwealth of Canada v. Canada, [1987] 2 F.C. 68, 36 D.L.R. (4th) 502

(C.A.) [cited to F.C.].

51bid. at 78, Hugessen J. He says:

The concept of a “public forum” is borrowed from American decisions. The Constitu-
tion of the United States differs appreciably from our own, notably in that it contains
no equivalent to our sections I and 33. It is neither necessary nor advisable for us in
Canada to adopt the categories developed by the U.S. courts to limit the overly absolute
formulation of certain rights in their Constitution (ibid.).

6Commnittee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139,77 D.L.R. (4th)

385 [hereinafter Committee for Commonwealth cited to S.C.R.].

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CHRONIQUES DE JURISPRUDENCE

patible with the state’s use of the property. Expression that is incompatible with
the state’s property use falls outside the protection of subsection 2(b) and can
be restricted by the state without special justification. General restrictions on
expression that are not based on the incompatibility of the expression with the
state’s property use must still be justified by the state under section 1 of the
Charter.

Justice McLachlin (LaForest7 and Gonthier JJ. concurring on the access
issue) holds that a restriction on communicative access to state-owned property
that is based on the state’s use of its property, and not on the content of the com-
munication, will violate subsection 2(b) only if the restricted communication
(including its location) can be shown to advance the values underlying the con-
stitutional protection of freedom of expression. In her view, communicative
access to certain state-owned properties, “private” state properties such as pris-
ons, will not advance the values of democracy, truth and autonomy and so the
restriction of access to these properties will not violate subsection 2(b). On the
other hand, access to state properties that historically have been open to public
expression will advance the freedom’s values and so the restriction of access to
these properties will violate subsection 2(b). If subsection 2(b) is violated, the
Court must then consider whether the violation is justified under section 1.

Finally, Justice L’Heureux-Dub6 takes the view that any time the state
restricts expression on its property it violates subsection 2(b) and must justify
the restriction under section 1. However, she considers that the section 1 stan-
dard should be lowered for time, place and manner restrictions. As well, she
accepts that the “public” or “private” character of the property should be taken
into account in the balancing of competing state and individual interests under
section 1. Some properties, “public arenas,” are better able to accommodate
expression. A general restriction on public communication on one of these prop-
erties is unlikely to satisfy the requirements of section 1. However, public com-
munication is fundamentally incompatible with the operation of “private” state-
owned properties. A restriction on communicative access to a private forum will
invariably be justified under section 1.

The judgments of Lamer C.J.C. and L’Heureux-Dub6 and McLachlin JJ.
recognize that discussion of public issues would be seriously impeded if private
citizens did not have some right to communicate on state-owned property. And
so all three reject the argument that state-owned property is simply part of the
background to judicial review and insulated from all claims of access. Yet at the
same time, all three are unwilling to subject a restriction on communicative
access to state property to the ordinary section I standard, which assumes a right
to communicate in the absence of substantial reasons for limitation! They are
unwilling to regard the constitutional question as simply whether or not the
state’s use of its property is important enough to justify a restriction on the
basic right of the individual to communicate wherever and whenever he/she

7Specifically, La Forest J. says: “in dealing with future cases, I would tend to approach them in

the manner suggested by McLachlin J.” (ibid. at 166).

8See R. v. Oakes, [1986] 1 S.C.R. 103 at 139, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to

S.C.R.], for the Supreme Court’s definition of s. 1 of the Charter.

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chooses.9 Instead, the three judgments give either complete or partial priority to
the state’s use of its property over communicative access.

All three judges are reluctant to second-guess the state’s judgment about
the compatibility of communication with its property use and to require any sig-
nificant compromise of the state’s property use to accommodate communica-
tion. There are a number of reasons that may explain this reluctance. First, the
members of the Court may be reluctant to treat property ownership as irrelevant
or insignificant in the resolution of a dispute between competing use claims.
The system of property rights seems to provide a stable context for individual
and collective activity, giving different individuals and groups exclusive control
over certain resources and settling the problem of competing use claims.'” Prop-
erty is such a fundamental part of the social order that it is difficult for the mem-
bers of the Court to give no weight whatsoever to the state’s ownership of a par-
ticular place or facility. Or put another way, property is so fundamental that,
although the members of the Court are not prepared to see it as lying entirely
outside the realm of judicial review, they are inclined to see a judicially defined
right of access as a special exception to the exclusive control of the property
owner. A right of access requires the owner to surrender part of his/her estab-
lished rights, something that should be exceptional.

More particularly the judges are reluctant to examine the state’s use of its
property. An assessment by the courts of the state’s property use would involve
second-guessing the state’s judgment about the importance of particular public
policies and the implementation of those policies – whether certain forms of
communication can be reasonably accommodated on a property dedicated to
automobile transportatibn or to the imprisonment of convicted criminals, for
instance. A judgment by the court requiring access to a state-owned property,
and in particular to a state-owned property that is closed to the public such as
a prison or a government office, would affect the property’s function or opera-
tion in unpredictable ways.

However, the principal reason for the judges’ reluctance stems from the
systemic or distributive character of the access issue. The access issue is not, as
Justice L’Heureux-Dub6 describes it, “a ‘classic’ confrontation between the
acknowledged value of political expression and legitimate government interests
in imposing certain restrictions on expression generally.”‘” It is instead a con-
frontation or competition between different uses of state-owned property, a dis-
tributive issue that will not fit easily within the established model of rights adju-
dication.

Under the established model, freedom of expression is understood as a lib-
erty which individuals have unless and until interfered with by the state. The
two questions for the Court under this model are first, whether the restricted
activity is expression protected under subsection 2(b) and second, whether the
state act that restricts the freedom represents an interest significant enough to

91bid. Oakes established rationality, proportionality and minimum impairment standards.
1’Moon, supra note 3 at 343.
‘Committeefor Commonwealth, supra note 6 at 166-67.

1993]

CASE COMMENTS

justify the restriction. However, the issue raised by a restriction on access to
state-owned property is not simply whether the value of the restriction is sub-
stantial enough to justify interference with expressive activity. It is rather
whether the government’s use of its property leaves adequate space for public
discourse and does not effectively prevent the public expression of particular
views.

The established model of adjudication focuses on a particular state act that
restricts expression rather than on the larger system of property distribution and
use. 2 It structures the access issue as an assessment and balancing of the state’s
reasons for excluding communication from a particular property and the indivi-
dual’s interest in communicating on that property. While the underlying concern
is the adequacy of opportunities for communication in the overall system, the
courts’ attention is focused on a point in the system, a particular state restriction
on access.

Under the established model, expression can only be restricted for substan-
tial and compelling reasons. 3 But a minor government function, or a less than
compelling purpose, should not be defeated simply because it requires a restric-
tion on access. The state should not be free to restrict access that does not inter-
fere in any way with its property use. But if there are a variety of other forums
open to public communication, the. state may be justified in restricting access
that interferes in either a large or small way with its use of a particular property.
It is unnecessary for the state’s use of a particular property, even a compara-
tively minor use, to yield to communicative access claims if there are alternative
forums. On the other hand though, if there are not adequate alternatives, the
state may have to compromise its property use and permit access. With this said,
however, it is unclear how much space should be preserved for public discourse
and at what point and to what degree the state should be required to compromise
its property, use to accommodate communication.

An assessment of the importance of a particular access claim to free and
open public communication and to the realization of freedom of expression val-
ues would turn, in part at least, on the availability and adequacy of alternative
forums for the restricted communication, which in turn would depend on the
distribution of communicative power in the community. However, if an indivi-
dual’s constitutional right of access to a particular property, such as an airport,
depends, in part, on whether he/she has a right to communicate on other prop-

12A1I three judges claim that their particular approach to the access issue follows the model set
.out by the Court in Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927 at 978-79,58 D.L.R. (4th)
577 [hereinafter Irwin Toy cited to S.C.R.].

3Other freedom of expression issues, such as defamation, hate propaganda, election spending
and pornography, have a distributive dimension in the sense that relative communicative power
may play a role in justifying the restriction of these forms of “expression.” But these issues still
seem to fall within the established model. In each case the expression may be restricted because
it causes harm to an important individual or collective interest. The distributive dimension is sim-
ply that the harm caused by these kinds of expression is greater because of the injured party’s rel-
ative lack of communicative power. For example, defamation causes harm to the individual’s rep-
utation; but our understanding of the seriousness of this harm is affected by our recognition that
the individual ordinarily does not have the power to respond effectively to defamatory remarks.

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erties, state or private, how is a court to judge the available alternatives? Will
not the right of access to these other properties in turn depend, in part, on
whether the individual has a right of access to the airport and to other proper-
ties?

A judgment about alternatives seems to require a reasonably stable back-
ground of communication rights and restrictions, perhaps in the form of recog-
nized public and private forums, which rest either on an established state prac-
tice of allowing communication on certain properties (such as parks and streets)
or on a judgment that communication is reasonably or generally compatible
with the ordinary state.use of certain properties so that access should be permit-
ted regardless of the alternatives. Any approach that tries to be open and flexible
and to judge the importance of each access claim on the basis of available alter-
native forums seems inevitably to rely on assumptions about the background of
communicative alternatives and ultimately to evolve into a version of the public
forum doctrine.

The differences in the way the three judgments structure the access issue
reflect different approaches to the problem of fitting the issue into the estab-
lished model of freedom of expression adjudication. The established model’s
focus on the restriction of access to a particular property makes it difficult for
the courts to assess the adequacy of the space available for public communica-
tion and to make the systemic adjustments necessary to achieve a fair compro-
mise between the requirements of public communication and the demands of
government policy.

The members of the Court try to fit the access issue into the established
framework and to.contain its distributive character by giving general or partial
priority to the state’s use of the property. Under the approach of Lamer C.J.C.
the state will only be required to give access to communication that is compat-
ible with its property use. This approach seems to avoid judicial second-
guessing of the state’s property use and judicial assessment of ihe background
of opportunities for public communication. Lamer C.J.C.’s approach either
ignores the issue of alternative opportunities for communication or assumes that
in the background there are always significant alternatives.

Both McLachlin and L’Heureux-Dubr JJ. purport to follow the established
two-step model for analysing freedom of expression issues. However, they want
to avoid a close assessment of the state’s property use and to limit the ad hoc
balancing of competing state and expression interests. They do this by smug-
gling into the standard analysis a version of the public forum doctrine. McLa-
chlin J. relies on the distinction between public and private forums in defining
the freedom’s scope under subsection 2(b). L’Heureux-Dub6 J. relies on the dis-
tinction in balancing competing state and expression interests under section 1.
The test for determining whether a particular property is a public or private
forum (arena) is the property’s importance as a forum for communication and
the general compatibility of public communication with the state’s use of the
property. If a property is classified as a public forum, the state will have to make
some efforts to accommodate expression. But if a property is classified as a pri-
vate forum, it will be insulated from all claims of access.

1993]

CHRONIQUES DE JURISPRUDENCE

211

The division of state-owned property into public and private forums shifts
attention away from the question of alternative forums and reduces the need to
second-guess the state’s use of its property. The basic standard for deciding how
to classify a particular property is whether or not public communication is com-
patible with the state’s use of the property. Even if a court takes into account
the availability and adequacy of alternatives when deciding how to classify a
property, it assesses the alternatives for public communication in general and
not for a specific act of communication. The complete insulation of a private
forum from access claims rests on a general conclusion that public communica-
tion will interfere significantly with the state’s property use and on an assump-
tion that as long as communication is permitted in public forums, there will be
adequate space for communication and it will be unnecessary for the state to
compromise its use of the private forum. On the other hand, the requirement that
the state accommodate expression in a public forum rests on a general conclu-
sion that compelling access for communication will not significantly impair the
state’s use of the property and on an assumption that the property is an impor-
tant forum for communication.

Lamer C.J.C., McLachlin and L’Heureux-Dub6 JJ. accept that there is a
role for the court in protecting opportunities for public communication on state-
owned property, yet they are reluctant to become deeply involved in assessing
and adjusting the distribution of property rights. Each of their judgments is char-
acterized by a tension between, on the one hand, a recognition of a right to a
broad and flexible right of access that ensures adequate space for public dis-
course and, on the other hand, a reluctance to engage in an open-ended and
potentially unmanageable assessment of the adequacy of communicative oppor-
tunities. They rely on different approaches to contain the distributive dimension
of the issue and to keep the focus on the particular restriction on access.

However, the general rules and categories that the members of the Court
rely on to limit judicial review of the state’s property use and the fair distribu-
tion of communicative power, are unclear and unstable. These rules come under
pressure when it becomes apparent that there are not adequate alternatives for
the communication of a particular message – when the unstated assumptions
about alternative forums do not seem to hold. The Chief Justice gives general
priority to the state’s use of its property by limiting the protection of subsection
2(b) to expression that is consistent with the state’s property use; yet the con-
sistency standard is vague and flexible and its application is easily influenced
by a desire to accommodate important access claims. The distinction between
public and private forums, relied on by L’Heureux-Dub6 and McLachlin JJ.,
rests on a general finding about thecompatibility of public communication with
the state’s use of the particular property. But the location of the line separating
public forums (the balancing of competing interests) and private forums (the
giving of priority to the state’s property use) will depend on the decision-
maker’s views and assumptions about the need for space for public discourse in
general and in specific circumstances.

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I. The Judgment of Lamer C.J.C.

A. Summary of Judgment

Early in his judgment Chief Justice Lamer describes the access issue as the
accommodation or balancing of two competing interests. On the one hand, there
is the interest of the individual “wishing to express himself in a place suitable
for such expression …….
The individual’s interest in access is simply that “the
dissemination of an idea is most effective when there are a large number of lis-
teners” and “the economic and social structure of our society is such that the
largest number of individuals, or potential listeners, is often to be found in pla-
ces that are state property” such as parks and roads. 5 On the other hand, there
is the government’s interest “in [the] effective operation of the place owned by
it.”‘ 6 Public communication will sometimes interfere with the state’s “public”
use of its property.

Lamer C.J.C. considers that the government’s ownership of a particular
property “cannot of itself authorize an infringement of the freedom guaranteed
by s. 2(b) of the Charter.”‘7 Government ownership is “quasi-fiduciary” in
nature. The government owns “places for the citizens’ benefit and use, unlike
a private owner who benefits personally from the places he owns.”‘ 8 For this
reason state property is not outside the scope of constitutional review and insu-
lated from all claims of access. Behind the assertion that ownership does not
give the state an automatic right to exclude access, is a concern that “an abso-
lutist approach” to the right of ownership would severely restrict the opportu-
nities for communication of many individuals. According to Lamer C.J.C., lim-
iting freedom of expression “solely to places owned by the person wishing to
communicate … would certainly deny the very foundation of the freedom of
expression.”‘ 9

Although the Chief Justice considers that ownership does not give the gov-
ernment an automatic right to exclude communication, and although he often
describes the restriction of communication on government property as a restric-
tion on freedom of expression, he argues that the reconciliation of the competing
government and individual interests should take place under subsection 2(b), as
a matter of the definition of the freedom’s scope, rather than under section 1,
as a matter of the proper balance between competing values or interests. The
Chief Justice considers that the access issue should be resolved under subsec-
tion 2(b) rather than under section 1 because he thinks that the onus of estab-
lishing a right of access should remain on the person seeking access and, more
significantly, because he considers that the right should be limited to access that
is compatible with the state’s use of its property. In spite of his early.references
to the balancing of interests, when the Chief Justice articulates the test for deter-

14Comnittee for Commonwealth, supra note 6 at 153.
15Ibid.
‘6Ibid.
171bid. at 155.
18Ibid. at 154.
t9lbid at 155.

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CASE COMMENTS

mining when access should be permitted, he seems to give complete priority to
the state’s interest in advancing and protecting the use to which it has put its
property.

According to Lamer C.J.C., “the individual will only be free to communi-
cate in a place owned by the state if the form of expression he uses is compatible
with the principal function or intended purpose of that place.” [emphasis
added]2″ A restriction on communication (other than a content-based restriction)
that protects or advances the state’s use of its property will not violate subsec-
tion 2(b) because expression that interferes with the state’s use does not fall
within the scope of freedom of expression. The state does not have unreview-
able power to exclude communication from its property; but its property use is
not subject to review by the courts under the standards of section 1 and need not
yield to any claim of access, even access that contributes significantly to free-
dom of expression values.

For Lamer C.J.C. an important advantage of the compatibility test is its
flexibility. The test does not create a category of “public forums,” where access
is virtually guaranteed, subject only to restrictions that advance substantial and
compelling state purposes; nor does it insulate a category of property (“private
forums”) from all access claims. He rejects “the nominalistic approach devel-
oped by the American courts” in favour of an approach that directly “balances”
the interests that underlie the public forum doctrine.2

Lamer C.J.C. illustrates the flexibility of his test using the example of the

Library of Parliament:

[N]o one would suggest that an individual could, under the aegis of freedom of
expression, shout a political message of some kind in the Library of Parliament or
any other library. This form of expression in such a context would be incompatible
with the fundamental purpose of the place, which essentially requires silence.
When an individual undertakes to communicate in a public place, he or she must
consider the function which that place must fulfil and adjust his or her means
of communicating so that the expression is not an impediment to that function.
To refer again to the example of a library, it is likely that wearing a T-shirt bear-
ing a political messa e would be a form of expression consistent with the intended
use of such a place.

The Chief Justice’s test does not insulate a particular class of properties from all
claims of access because the test is not whether communication is generally
consistent with the state’s use of the particular property but rather whether this
particular claim of access is. compatible with the state’s property use.

In the case before the Court, the Chief Justice finds that the airport autho-
rities’ exclusion of the respondents from the public areas of the terminal build-

20Ibid. at 156. The reference to “form” emphasizes the Chief Justice’s understanding of this
exclusion from the scope of s. 2(b) as an extension of the exclusion in Irwin Toy, supra note 12,
of expression that has a violent form. It may also indicate that expression is not incompatible with
the state use of property just because its message is critical of the state or the state’s property use.
21Committee for Commonwealth, ibid. at 152. Lamer C.J.C. further notes that: “The American
experience shows that the ‘public forum’ concept actually results from an attempt to strike a bal-
ance between the interests of the individual and the interests of the government” (ibid.).

221bid. at 157. This example is. reminiscent of the case of Brown v. State of Louisiana, 86 S. Ct.

719 (1966), which involved a silent protest in a segregated library.

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[Vol. 38

ing was contrary to subsection 2(b) because the respondents’ political commu-
nication was compatible with the use of the property as an airport. In his view:

[T]he distribution of pamphlets and discussion with certain members of the public
are in no way incompatible with the airport’s primary function, that of accommo-
dating the needs of the travelling public. An airport is in many ways a thorough-
fare, which in its open areas or waiting areas can accommodate expression without
the effectiveness or function of the place being in any way threatened.23
After he finds that the respondents’ expression was compatible with the
operation of the airport, Lamer C.J.C. considers the application of section 1
(even though the only arguments the state put forward to justify the restriction
were first, that its ownership of the airport gave it the right to exclude access
and second, that access was incompatible with the airport’s operation). He finds
that the airport regulation did not cover the respondents’ political expression, so
that the “limitation imposed on the respondents’ freedom of expression arose
from the action taken by the airport manager … when he ordered the respondents
to cease their activities.” 4 In the Chief Justice’s opinion this action by the man-
ager, although based on established policy, was not a “law” and so did not sat-
isfy the section 1 requirement that a limit on the freedom be “prescribed by
law.” Therefore the restriction was not justified under section 1 ‘

B. Discussion of Judgment

The decision to give the state’s property use priority over access claims is
never clearly explained by the Chief Justice. At one point he states that “the
Charter does not protect ‘expression’ itself, but freedom of expression. 26 How-
ever, he does not explain the basis for this distinction and he does not say how
it is to be reconciled with the Court’s earlier judgments, which take a broad view
of the scope of protected expression under subsection 2(b) (excluding only
expression that has a violent form) and require that restrictions on expression
be justified under the terms of section 1. Elsewhere, the Chief Justice points out
that the state uses its property to advance the interests of citizens as a whole. 7
He seems to assume that the state use of the property represents the collective
interest, which should prevail over the individual’s interest in free expression.
But why should a restriction on communication that protects the state’s use of
its property be treated differently from restrictions that protect other public val-
ues or concems?’Restrictions on expression that protect racial minorities from
harm or children from manipulation are addressed under section 1 and must
meet proportionality and minimum impairment standards.2

23Conzittee for Commonwealth, ibid. at 158-59.
24Ibid. at 164.
25Section I of the Charter permits the imposition of “such reasonable limits prescribed by law
26Committee for Commonwealth, supra note 6 at 156.
271bid. at 155. Lamer C.J.C. continues:

as can be demonstrably justified in a free and democratic society.”

The fundamental government interest, and by the same token that of the citizens as a
whole, is thus to ensure that the services or undertakings offered by various levels of
government are operated effectively and in accordance with their intended purpose
(ibid. at 156).

281nvin Toy, supra note 12. See also R. v. Keegstra, [1990] 3 S.C.R. 697, 61 C.C.C. (3d) 1 [here-

inafter Keegstra cited to S.C.R.].

1993]

CHRONIQUES DE JURISPRUDENCE

215

At one point in his discussion of the compatibility test, the Chief Justice
states that “[e]ven before any attempt was made to use [state-owned property]
for purposes of expression, such places were intended by the state to perform
specific social functions.”29 The suggestion here perhaps is that these properties
would not be forums for communication if the state had not put them to a use
which drew a crowd –
so that those seeking
access can hardly complain if their claim is treated as secondary to the state’s
-use of the property. Indeed, the usefulness of the place as a forum for commu-
nication might be lost if the state function were undermined by the frequent
occurrence of incompatible communication. In some cases the conflict between
the communicative access claimed and the state use of the property is not coin-
cidental. In a case such as yelling from the Parliamentary Gallery, the commu-
nication may be significant only because it disrupts the state’s property use.

the roads, or the legislature –

However, what really seems to lie behind the adoption of a compatibility
test is a concern that any approach that does not give priority to the state’s use
of its property (i.e. does not regard this as unreviewable background) and
instead seeks to balance under section 1 the access claim against the state use
will be unmanageable. The issue raised by a claim of access to state property
is not simply, as the established model of adjudication assumes, whether or not
the state is justified in silencing a particular form or instance of expression
because it causes harm to an important individual or collective interest. Instead
a claim of access raises specific questions about the reconciliation or compro-
mise of competing claims to use a particular state-owned property and larger
questions about the creation and protection of opportunities to communicate on
state-owned property in general.

The resolution of the access issue under section 1 would involve an assess-
ment and balancing of the competing individual and government property use
claims. An assessment of the government’s exclusion of access would require
the courts to second-guess the government’s judgment about the use of its prop-
erty, as a prison or as a roadway for example, and the sort of communicative
access that interferes with this use. The government’s judgment that certain
forms of expression are incompatible with its use of the property will reflect its
particular understanding of the function or purpose of the property (the function
of a prison or the purpose of the roadways) and may involve considerations that
are complex and technical (what is necessary to prison security? what are the
economic and safety costs of accommodating demonstrations on the roads?). A
court cannot anticipate all the ways in which the state’s use of its property will
be affected by a decision to allow communication on the property.

The court would have to compare the importance of the state’s use of its
property (street or prison) and the need for the exclusion of access (to freely
flowing traffic or prison security) with the importance of the freedom to com-
municate on these properties, which depends significantly on the kinds of alter-
natives available to the person seeking communicative access. The courts would
have to assess both the availability and the adequacy of alternatives for partic-
ular individuals or for particular viewpoints. A political protest may be less

29Committee for Commonwealth, supra note 6 at 156.

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[Vol. 38

powerful if it is held in a park located on the outskirts of the city than if it is
held on the grounds of the City Hall. And, of course, access to a park for a polit-
ical protest will be more important if the protest cannot take place at the City
Hall.

Instead of adopting a version of the public forum doctrine to contain the
open-ended and distributive character of the access judgment, Lamer C.J.C.
seeks to avoid entirely the problem of having to choose between competing
property use claims, simply by giving priority to the state’s use of its property,
and excluding any formal consideration of the importance or value of the com-
municative access claim.

His approach fits awkwardly with the established model of freedom of
expression adjudication, which provides that any restriction on expression (gen-
erously defined) will be unconstitutional unless justified under section 1. The
awkward fit of the Chief Justice’s approach becomes clearer once we recognize
that sometimes it may be difficult to decide whether the restricted expression is
incompatible with the state’s use of its property or is simply in conflict with a
more general interest or value. Or put another way, it sometimes will be difficult
to distinguish between a restriction which advances or protects the state’s prop-
erty use and a restriction which protects a more general public interest. Is the
noise restriction meant to protect the special use of the property or is it simply
a way of protecting individuals in a particular context from irritating or unde-
sirable noise? If the restriction protects the state’s use of its property it will not
violate subsection 2(b). However, if the restriction advances a more general
value or interest it will violate subsection 2(b), although it may be justified
under section 1.

Similarly there might be some question as to whether a particular act of
communication is incompatible with the state’s use of the property, and so out-
side the protection of subsection 2(b), or whether it is the combination or accu-
mulation of a number of similar acts that is incompatible, so that the issue falls
to be resolved under section 1 –
a matter of distributing a limited number of
opportunities to communicate. A particular instance of public communication in
the airport terminal might be compatible with the movement of travellers but if
there were many instances of expression occurring at the same time the ordinary
use of the terminal would be impaired.

It is unclear how far Chief Justice Lamer’s compatibility test will avoid
judicial second-guessing of the state’s property use. The Chief Justice’s test may
require the courts to impose their own views about what is and what is not com-
patible with the state’s use of its property or’it may permit the courts to defer
generally to the government’s views on the question. If the courts defer to the
state’s judgment about what is incompatible with the property’s use, there is a
risk that the state will define the exclusion very broadly; prison authorities, for
example, are notorious for taking a broad view of what is necessary to prison
security. But, on the other hand, if the courts are willing to second-guess this
judgment by the state, their views about compatibility will be affected by their
particular, and potentially controversial, understanding of the property’s use.
For example, a court’s judgment about what is necessary to the operation of a

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CASE COMMENTS

prison will almost certainly be affected by its understanding of the purposes of
imprisonment.

*As well, it is unclear how well the compatibility test will avoid a balancing
of interests and contain the distributive dimension of the access issue. A com-
patibility standard may be broadly interpreted so that the access right is limited
significantly. It is almost always possible to find that a particular act of commu-
nication is incompatible or inconsistent, to some degree, with the state’s prop-
erty use because it causes some disruption or inconvenience. For example, com-
munication by religious groups on street corners may be considered
“incompatible” with the ordinary use of the streets because it may impede the
flow of pedestrian or automobile traffic.” Chief Justice Lamer seeks to avoid
this possibility by narrowing the test under subsection 2(b) to incompatibility
with the fundamental purpose, or the very or principal function, of the place.

But what is the principal function of the place and how will the courts dis-
tinguish it from minor aspects of the state’s use of its property? By what stan-
dards should the courts measure the trade-off between minor uses of the prop-
erty and competing communicative access claims? Is it possible to distinguish
between interference with- a minor function of the property and a minor inter-
ference with the property’s principal function (e.g. a minor interference with the
flow of pedestrians on public sidewalks)? Will a minor interference with the
principal function of the state property always be excluded from the protection
of subsection 2(b)?3″

Any effort to avoid a broad application of the compatibility test opens the
door to some balancing of competing interests. Undoubtedly when important
access claims are made, not only will the courts insist on a tighter connection
between the state’s use of the property and the exclusion of communication but
as well they will push the state to accommodate some communication and to
suffer a degree of interference with its use of the property. Some balancing of
the sort the Chief Justice tries to avoid with his compatibility test is bound to

3 0Lamer C.J.C. puts it this way:

For example, if a person tried to picket in the middle of a busy highway or to set up
barricades on a bridge, it might well be concluded that such a form of expression in
such a place is incompatible with the principal function of the place, which is to pro-
vide for the smooth flow of automobile traffic. In such a case, it could not be concluded
that freedom of expression had been restricted if a government representative obliged
the picketer to express himself elsewhere (ibid. at 157-58).

3 1For a discussion of the limits of a compatibility test see Moon, supra note 3 at 354-56. Sim-
ilarly, Justice McLachlin in Committee for Commonwealth, supra note 6 at 235, criticises the com-
patibility test: “Does it mean normal function? Optimum function?” She assumes that only if the
impairment of function were severe would s. 2(b) be held inapplicable, with limitations relating
to major (as opposed to minor) functiori falling to be justified under s. 1:

In some cases, the right of free expression might be considered important enough to
interfere to some extent with the function of government property. In others, the impair-
ment of function will be so great in comparison with the interest in free expression as
to justify exclusion or limitation of the expression. The concept of function is thus seen
to involve a balancing of interests which arguably serves better as part of the s. 1 test
than as a threshold for screening out claims which raise no primafacie free expression
interest (ibid.).

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[Vol. 38

play a role given the flexibility of the test and the not easily suppressed desire
to increase opportunities for communication – particularly in cases where there
are not adequate alternative forums. Although formally excluded under a com-
patibility test, the demands of freedom of expression re-enter the analysis,
affecting the shape and standard of the compatibility requirement. A balancing
of competing state and individual interests occurs under subsection 2(b) rather
than under section 1 and is hidden behind the vague language of compatibility.
The degree to which the state will be required to accommodate access and com-
promise its use of the property is uncertain.

II. The Judgment of McLachlin J.

A.

Summary of Judgment
McLachlin J. adojts what she regards as the reasonable middle course on
the issue of communicative access to state property, “between the extremes of
the right to expression on all government property and the right to expression
on none.”32 She considers that if the state had “the absolute right to prohibit and
regulate expression on all property which it owns,” as an incident of its owner-
ship, the right’s “purpose –
to permit members of society to communicate their
ideas and values to others – would be subverted.”33

She also rejects as extreme the position that any denial of communicative
access to government-owned property will violate freedom of expression and,
unless justified under section 1, will violate the Charter. She questions whether
“the framers of the Charter intend[ed] s. 2(b) to offer protection to the citizen’s
speech in even the most private state-owned property” such as “private govern-
ment offices, state-owned broadcasting towers and prisons.” And she points to
the absence of any historical right to communicate on these properties: “Free-
dom of expression has not traditionally been recognized to apply to such places
or means of communication …

4

However, the substance of Justice McLachlin’s argument against this
“extreme” position lies neither in history nor in the intentions of the drafters but
rather in her understanding of the values that underlie freedom of expression.
She believes that the purposes of freedom of expression do not justify “confer-
ring on the public the constitutional right to express itself publicly on all public
property, regardless of its use and function.”35 In her view: “To say that freedom

32Coninittee for Commonwealth, ibid. at 242.
331bid. at 230.
341bid. at 231. McLachlin J. continues at 231-32: “To say that the guarantee of free speech
extends to such arenas is to surpass anything the framers of the Charter could have intended.”
Her appeal to the framers’ intentions is not supported by any specific evidence of their views
and is simply a way of asserting the unreasonableness of the “extreme” position. Of course, appeals
to intention give the impression that the conclusion is not simply the judge’s own view but has a
neutral constitutional basis.

And, as Justice McLachlin acknowledgeg, the historical argument, while not irrelevant, may not
have much weight since the Charter is understood to guarantee rights against existing and future
state practices. However, history or convention has a role in giving particular shape to individual
rights and collective responsibilities.

351bid. at 231.

1993]

CHRONIQUES DE JURISPRUDENCE

of expression extends to all state-owned property is to overshoot the actual pur-
pose of the freedom, to extend the protection of the Charter to situations where
the values underlying the right are absent.” 36 In more practical terms she
observes that the state should not be required to defend its restriction of expres-
sion under section 1 if the expression does not contribute to the values or inter-
ests traditionally associated with the guarantee.

Adopting the approach set out by the Supreme Court in its earlier judgment
of Irwin Toy, McLachlin J. says that in reviewing any state restriction on com-
munication (including a restriction on access to state property), the Court must
ask whether the impugned state act has as its purpose the restriction of expres-
sion or has only the effect of restricting expression. If the state act has as its pur-
pose the restriction of expression, then it will violate subsection 2(b) and, unless
it can be justified under the terms of section 1, it will violate the Charter. How-
ever, if the state act has simply the effect of restricting expression, it will be
found to violate subsection 2(b) only if those attacking its constitutionality can
show that the restricted expression (including its time, place and manner)
advances one of the values underlying the freedom such as truth, democracy or
self-realization.37

McLachlin J. recognizes that the restriction of communication on state-
owned property may in some cases be content-based, intended to restrict the
communication of certain messages. 8 However, she considers that in most cases
the restriction of access to state-owned property is intended to protect the state’s
use and so has only the effect of restricting expression. In these cases the person
claiming access must show “that the expression on the public property in ques-
tion engages traditional free speech concerns and hence falls within the ambit
of s. 2(b).”’39 The Court’s examination will focus on “whether the forum’s rela-
tionship with the particular expressive activity invokes any of the values and
principles underlying the guarantee.”‘ If the Court decides that the access that
has been restricted would not have advanced the freedom’s values, then the
restriction will not violate subsection 2(b). But, if the Court decides that the
restricted access would have advanced the freedom’s values and so falls within

361bid. at 232.
37For a critical discussion of the purpose/effects distinction set out in the Irwin Toy case see R.
Moon, “Drawing Lines in a Culture of Prejudice: R. v. Keegstra and the Restriction of.Hate Prop-
aganda” (1992) 26 U.B.C. L. Rev. 99 at 106-08.

38See e.g. Committee for Commonwealth, supra note 6 at 238, where McLachlin J. says:
A restriction on the forum for expression may be content-based. For example, a ban on
anti-war messages on Parliament Hill might be viewed as essentially content-based. In
a place where political messages of all sorts are traditionally tolerated, a restriction is
placed on one particular type of message because of its content.

39Ibid. at 232-33.
4Ibid. at 239. McLachlin J. also says:

The line it draws reflects the purpose of the guarantee of free expression. The guarantee
extends only so far as can be justified having regard to these purposes, beyond which
the Crown is not called upon to justify its legislation or conduct under s. 1. Claims
which clearly do not raise the concerns central to the guarantee are eliminated at the
start, avoiding the danger that the right may be trivialized while the burden imposed
on members of the public seeking to invoke Charter protection is not unduly onerous
(ibid. at 242).

McGILL LAW JOURNAL ,

[Vol. 38

the scope of subsection 2(b), the Court must then consider whether the govern-
ment’s restriction is justified under section 1.

According to Justice McLachlin, at the section 1 stage, “the concern should
be primarily one of weighing and balancing the conflicting interests –
the indi-
vidual’s interest in using the forum in question for his or her expressive pur-
poses against the state’s interest in limiting the expression on the particular
property.”‘” The balancing must be done “contextually, having regard to the
facts and values of the particular case before the court.”42 M6Lachlin J. consid-
ers that content-neutral restrictions that are found to violate subsection 2(b)
because the restricted expression advances the values underlying the freedom,
“may be easier to justify [under section 1] than content-based restrictions”
because they are “likely to be (a) more closely tied to the function or purpose
of the place in question, and/or (b) less objectionable than content restric-
tions.”43 Presumably, content-neutral restrictions are less objectionable because
they simply restrict the time, place or manner of expression and often leave ade-
quate alternatives –
other times, manners or places in, or at which, the same
message can be expressed.”

In the case before her, Justice McLachlin considers that the airport’s
restriction on expression is not meant to favour one point of view over another
and is aimed at the consequences of expression generally. Although she finds
that the restriction is content-neutral, she has no doubts that the respondents’
expression advanced the freedom’s values so that its restriction violated subsec-
tion 2(b):

The respondents in this case were seeking to present political views in a location
frequented by many members of the community passing en route from one place
to another, a location which can be considered to be a modem equivalent of the
streets and by-ways of the past. This establishes a relationship between the respon-
dents’ use of the airport for expression and one of the purposes of the free expres-
sion guarantee.45

Under section 1 she compares the respondents’ interest in access for communi-
cation with the state’s interest in excluding communication. She concludes that
the restriction is not justified since the state has little or no reason to limit com-
munication in the public areas of the terminal. The respondents’ expression was
entirely compatible with the operation of the airport.

41Ibid. at 237.
421bid. at 245-46 (on the application of s. 1). McLachlin J. asks a number of questions to achieve

the necessary balancing:

How suitable is the location for effective communication of the message to the public?
Does the property in question have special symbolic significance for the message being
communicated? Are there other public arenas in the vicinity in which the expression
can be disseminated? In short, what does the claimant lose by being denied the oppor-
tunity to spread his or her message in the form and at the time and place asserted? (ibid.
at 250)

43Ibid. at 248.
44There is the obvious question of whether any “time, place or manner” restriction is truly
45Committee for Commonwealth, supra note 6 at 243.

content-neutral.

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CASE COMMENTS

B. Discussion of Judgment

Justice McLachlin claims that her approach to the access issue is faithful
to the established model of freedom of expression adjudication. According to
McLachlin J., the task at the subsection 2(b) stage is “primarily definitional
rather than one of balancing …’46 She stresses that the limited scope of the sub-
section 2(b) right to communicate on state-owned property is based “on the val-
ues and interests” that underlie freedom of expression and not on the character-
istics of particular government properties. However, McLachlin J.’s application
of the subsection 2(b) test seems to yield a categorical distinction between pub-
lic and private, forums. She assumes that the test will result not simply in the
exclusion of particular access claims to state-owned property but rather in the
general insulation of a particular set of state properties from all claims of
access.47

More specifically McLachlin J. says that under her test, expression in pris-
ons or prison cells, judges’ private chambers, private government offices and
publicly-owned broadcasting facilities will not receive protection under subsec-
tion 2(b).48 She considers it self-evident that the purposes of freedom of expres-
sion will not be served by public expression in these places:

These are not places of public debate aimed at promoting either the truth or a bet-
ter understanding of social and political issues. Nor is expression in these places
related to the open and welcoming environment essential to maximization of indi-
vidual fulfillment and human flourishing.49

A restriction on access for communication to a “private” state-owned property
will not violate subsection 2(b) and so will not require justification under sec-
tion 1. On the other hand, McLachlin J. considers that the purposes of the guar-
antee of free expression are served by permitting expression in public forums,
“places which have by tradition or designation been dedicated to public expres-
sion .. o The use of these places for political, social or artistic expression
“would clearly seem to be linked to the values underlying the guarantee of free
speech.””1 A restriction on access to a public forum will violate subsection 2(b)
and so will require justification under section 1.

However, if the test under subsection 2(b) is simply whether the restricted
communication advances the values underlying freedom of expression, it is dif-

46Ibid. at 237.
47McLachlin

. says: “In my view, the guarantee of free expression in s. 2(b) of the Charter can-
not reasonably be read as conferring a constitutional right to use all government property for pur-
poses of public expression” (ibid. at 228).

45Ibid. at 241.
491bid.
5OIbid.
511bid. at 242. I have argued elsewhere, Moon, supra note 37 at 107, that the assessment under
s. 2(b) of state acts which have the effect but not the purpbse of restricting expression (“time, place
and manner restrictions”) is not as the Court suggests simply a matter of deciding whether or not
the expression advances the values underlying the freedom but is in fact a limited form of balanc-
ing of competing interests –
a way of avoiding the demanding standards of s. 1 and the Oakes
test.

REVUE DE DROIT DE McGILL

[Vol. 38

ficult to see why it should yield a categorical distinction between public and pri-
vate forums. It seems to me that the insulation of particular properties from any
and all access claims must rest not simply on a judgment about whether or not
the access advances the freedom’s values but also on an assessment of the
degree to which the access interferes with the state’s use of its property. In
defining the scope of the freedom under subsection 2(b), Justice McLachlin
does not simply assess (positively) the contribution of expression on the partic-
ular property to the freedom’s values, she also takes account (negatively) of the
degree to which the restricted expression might interfere with the state’s use of
the property.

It may be that in many cases, access for communication to prisons, private
government offices and other similar state-owned properties, will not generate
reflection or debate but will simply interfere with the state’s use of its property.
But we cannot in every case exclude the possibility that communication on one
of these properties may advance the freedom’s values, particularly if we accept
that communication is deserving of protection even when it is disruptive and
confrontational.52 In spite of Justice McLachlin’s assurances to the contrary, it
is hard to resist the conclusion that her judgment that certain state properties
(private forums) should be insulated from all claims of access rests, at least in
part, on the detrimental impact of access on the state’s use of these properties.
It seems then that the division of properties into public and private forums
does not simply rest, as McLachlin J. claims, on the contribution of expression
on a particular property to the values underlying the freedom but is rather the
outcome of some form of balancing or accommodating of competing claims –
the importance of communicative access to a prison against the costs of access
to prison security and discipline or the value of access to a publicly-owned
broadcasting facility against the administrative and other costs of compromising
the state’s absolute control over the facility. The conclusion that access to a
prison or to a publicly-owned broadcast facility does not advance the values
underlying subsection 2(b), and should be insulated from all claims of access,
reflects the assumption of McLachlin J. that public expression is incompatible
with the state’s use of these properties and is not important enough to support
a compromise of the state’s use.

The use of the private/public forum distinction is a way of containing to
some degree the open-ended balancing of competing state and individual infer-
ests. Instead of assessing and balancing competing state and communication
interests in each case, the Court makes a general threshold judgment about the
compatibility of access with the state’s use of its property.53 A property that is
generally open and able to accommodate public communication will be classi-
fied as a public forum; while a property that is closed to the public and performs
a function that will not easily accommodate public communication will be clas-
sified as a private forum.

52See Justice McLachlin’s judgment in Keegstra, supra note 28 at 832.
53See Committee for Commonwealth, supra note 6 at 236-37, where McLachlin J. says that
“[t]he analysis under s. 2(b) should focus on determining when, as a general proposition, the right
to expression on government property arises.”

1993]

CHRONIQUES DE JURISPRUDENCE

Different standards of review apply to each of the categories of state-
owned property. If a property is classified as a public forum because public
communication is reasonably compatible with its use by the state, the state will
have to make some efforts to accommodate communication, even if this
involves a compromise of the state’s use.54 The state will be permitted to restrict
expression only if the restriction can be justified under section 1, although
McLachlin I. suggests a lowered standard of justification for time, place and
manner restrictions. On the other hand, those state properties that are considered
private forums because public communication is generally incompatible with
their use by the state, will be insulated from all claims of access. A restriction
on access. to a private forum will not violate subsection 2(b) and so will not
require justification under section 1, even if the particular access claim is
important and might reasonably be accommodated.

The use of the public/private forum distinction allows the courts to avoid
examining carefully the state’s judgment about when communication is incom-
patible with its use of a particular property and assessing specifically the avail-
ability and adequacy of alternative forums for communication. The distinction
rests on the compatibility of communication with the state’s use of the property,
and so there is no direct or formal consideration of the availability of-alternative
forums. As well, because the distinction rests on a general assessment of the
compatibility of public expression with the state’s use of the property, there is
no examination of particular access claims to decide if they are incompatible
with the state’s property use. The complete insulation of private forums seems
to rest on an assumption that it is not necessary to compromise state use of the
property as long as communication is permitted in public forums. Public forums
will provide adequate space for communication. In contrast, the state must
accommodate expression in a public forum because it is an important location
for public -expression and because public expression will not significantly
impair its use by the state.

According to McLachlin J., her test “offers sufficient flexibility to permit
development of a legal doctrine sensitive to emerging concerns and new situa-
tions.”‘ However, her use of the public forum/private forum categories is meant

54McLachlin J. explains:

In some cases, the right of free expression might be considered important enough to
interfere to some extent with the function of government property. In others, the impair-
ment of function will be so great in comparison with the interest in free expression as
to justify exclusion or limitation of the expression. The concept of function is thus seen
to involve a balancing of interests which arguably serves better as part of the s. 1 test
than as a threshold for screening out claims which raise no prima facie free expression
interest (ibid. at 235).

55Ibid. at 242. Justice McLachlin considers that the compatibility test put forward by Lamer
C.J.C. is not flexible enough. Under the Chief Justice’s test, she says, the freedom will not extend
to the Parliamentary library “because silence is essential to its function.” She observes, however,
that “the Parliamentary library could function quite well despite the presence of demonstrators
holding placards” (ibid. at 234, 235). This is a surprising criticism for two reasons.

First it is unfair’because it misrepresents the Chief Justice’s position. The Chief Justice does not
argue for an a priori insulation of certain properties from access claims under the Charter. His view
is simply that the judgment about whether a particular claim of access should be permitted should
take place under s. 2(b) and should turn on whether or not it is compatible with the state use of

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to limit some of this flexibility and to avoid ad hoc balancing. With some of the
properties McLachlin J. describes as private forums, the detrimental impact of
communicative access on the state’s use might be significant enough to out-
weigh the value of the access every time, particularly if we assume a reasonably
stable background of alternative opportunities to communicate in public forums
such as streets and parks. But with other private forums there may be certain
kinds of expression that will not interfere significantly with the state’s use of the
property (e.g. Lamer C.J.C.’s example of the silent protest in the Parliamentary
library or perhaps even controlled access to a prison).

More significantly, there may be times when access is so important that the
state should be required to accommodate communication even if this involves
compromising the state’s use of the property. The assumption that there are
many public forums in the community which provide adequate alternatives for
the expression of messages that are banned from private forums, may not
always hold. Because the issue under subsection 2(b) is determined categori-
cally (does communication in a prison advance the values underlying the free-
dom?), flexibility is lost in the assessment of the costs and benefits of access.
If the issue were understood differently, as a matter of the contribution to the
freedom’s values of a particular instance of communication within a prison,
compared with the costs of this communication to other values such as the safe
and secure operation of the prison, then in almost all cases the restriction of
access to a prison would be straightforward. But there might be at least some
cases in which the claim of access would prevail because it is particularly
important and/or because it does not significantly interfere with the property’s
function. Such flexibility might be desirable in the prison context, where the
requirements of security are significant but the need for communicative oppor-
tunities is also great. Ther& are no alternatives for inmates if communication is
restricted in a prison. As well, there will be little opportunity for the public to
supervise the operation of the prison system if the press and representatives of
public interest groups are denied access.

The flexibility of McLachlin’s J.’s approach will depend on how broadly
or narrowly she defines the category of state-owned “private” properties, which
are insulated from all claims of access. McLachlin J. says some things that sug-
gest that the category of “private forums” may be broadly defined. For example,
when she describes the private forum/public forum distinction she draws on the
language of the American public forum doctrine and says that “the use of places
which have by tradition or designation been dedicated to public expression for
purposes of discussing political or social or artistic issues would clearly seem
to be linked to the values underlying the guarantee of free speech.”56

the property. He uses the Parliamentary library to illustrate the application of his test and says in
very clear terms that while most claims to communicate there do not fall within the scope of s.
2(b) because they are inconsistent with the operation of the library, certain claims, such as a silent
vigil, might be consistent with its operation and so should be recognized under s. 2(b).

Secondly it is an odd criticism for McLachlin J. to make because her categorical exclusion of
certain state properties from the scope of s. 2(b) seems more inflexible than the Chief Justice’s
compatibility test.

56Ibid. at 241-42.

1993]

CASE COMMENTS

However, an important way in which her approach may show flexibility
and take into account the value of access for communication and the absence of
alternative forums is with its definition of a particular private forum. Forums do
not come neatly packaged with clear and fixed parameters. 7 A private forum
may be narrowly defined, carved from a larger forum –
a judge’s chambers
rather than a courthouse or a prison cell rather than a prison. The narrow def-
inition of these private forums may reflect a concern that if the state is permitted
to restrict all instances of expression throughout the courthouse or the prison,
important communication for which there is no alternative outlet will be
silenced.

McLachlin J. believes that the test she proposes for determining when a
right arises to tise government property for public expression “is sufficiently
clear and precise.”‘ But the clarity and precision of her test are illusory. The ini-
tial classification of the property as either a public forum or a private forum
rests not simply as McLachlin I claims on an assessment of the contribution of
particular instances of access to the values which underlie the freedom (a vague
and indeterminate standard in itself) but rather on an intuitive and general
assessment of the compatibility of public communication with the state’s prop-
erty use. The line separating public and private forums is bound to be indeter-
minate and unstable. There is simply no correct or obvious place to draw the
line between those properties that are generally compatible with expression and
must be open to public communication, unless the state can justify the particular
restriction of communication, and those properties that are generally incompat-
ible with public communication and are insulated from all claims of access
regardless of the merits of the specific claim.

The division of state property into public and private forums (rather than
a direct balancing of interests) represents an unstable compromise between
competing institutional concerns –
on the one hand a commitment to a broad-
based freedom of expression protected by the courts and, on the other hand, a
reluct nce to second-guess legislative judgment about what is necessary to the
effective operation of its property and a desire to contain the open-ended char-
acter of the access decision.

The line between public forums (and the accommodation of public expres-
sion) and private forums (and the insulation from public expression) will be
pushed by the demands of freedom of expression to protect a wider range of
opportunities for public discourse in general and to protect specific instances of
expression that may be excluded in the general assessment of compatibility.
And it will be pulled in the opposite direction by the desire to contain judicial
involvement in the assessment and redistribution of property rights and the
power to communicate.

Il. The Judgment of L’Heureux-Dub J.

A. Summary of Judgment

The approach of Justice L’Heureux-Dub6 is, at least at first glance, more
expansive and more flexible than that of either Lamer C.J.C. or McLachlin J.

57See Moon, supra note 3 at 351.
58Committee for Commonwealth, supra note 6 at 242.

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In her view, any attempt by the state to restrict communication on its property
should be treated as a restriction on freedom of expression and a violation of
subsection 2(b). 9 She considers that the balancing of the competing individual
and state interests should take place under section 1. For example, she says:

Were a group of demonstrators to choose our own Chambers as a forum for their
protestations, the government may legitimately prohibit such activity. However,
the attempt to do so would abridge the freedom of expression, albeit in a manner
that would likely be demonstrably justified under s. 1.6

0

For L’Heureux-Dub6 I., no other approach fits with the broad construction the
Supreme Court has given to subsection 2(b) in its earlier decisions.

According to L’Heureux-Dub6 J. the government cannot justify the restric-
tion of communicative access under section 1 simply by relying on its owner-
ship of the property in question. She recognizes that “[i]f members of the public
had no right whatsoever to distribute leaflets or engage in other expressive
activity on government-owned property (except with permission), then there
would be little if any opportunity to exercise their rights of freedom of expres-
sion.”6 Any restriction of expression on state property must satisfy the rational-
ity, minimum impairment and proportionality standards of section 1 and the
Oakes case. However, L’Heureux-Dub6 J. believes that these standards should
not be applied strictly in access cases. She says that:

If all restr’ctions relating to noise, litter, orderliness, and access to property, which
may obliquely impinge upon the freedom of expression, had to be predicated upon
momentous governmental objectives under the Oakes test, government would
hardly ever be able to legislate effectively with respect to these matters. 62
In the case before the Court, L’Heureux-Dub6 J. finds that the airport’s
restriction on communication in its public areas violates subsection 2(b) and is

59Ibid, at 189, where L’Heureux-Dub6 J. states:

Suffice it to say for the moment that, in my view, certain governmental restrictions can-
not be automatically excised from the s. 2(b) guarantee strictly on the basis that they
do not apply to locations traditionally associated with public expression. While such
limitations may prove reasonable, it is a burden that the government must discharge
under s. 1.

60Ibd. L’Heureux-Dub6 J. continues:

Those arguing for the contrary position have asked rhetorically whether this means that
the government’s regulation of resources such as CBC radio and television constitutes
a restriction on freedom of expression, and hence violates s. 2(b) of the Charter. In fact,
such restrictions, along with the Judges’ Chambers example, are paradigmatic illustra-
tions of (usually) content-neutral, reasonable time, place, and manner regulation. How-
ever, as they constitute violations of s. 2(b), they must also be demonstrably justified
under s. I before they can successfully withstand a constitutional challenge (ibid. at
190).

61Ibid. at 198. L’Heureux-Dub6 J. continues by explaining that if only those persons with enough
wealth to own land, or mass media facilities, were able to express themselves to the larger public,
the achievement of the Charter’s basic purposes –
the free exchange of ideas, open debate of pub-
lic affairs, the effective workin of democratic institutions and the pursuit of knowledge and truth
– would be frustrated (ibid.).

621bid. at 222. L’Heureux-Dub6 J. continues: “In addition, what may be applied strictly in the
context of criminal law may warrant more relaxed implementation with respect to social issues”
(ibid.).

1993]

CHRONIQUES DE JURISPRUDENCE

not justified under section 1. In her view the regulation violates subsection 2(b)
because its effect, if not its purpose, is to restrict political expression. She con-
siders that airports have become “contemporary crossroads,” the functional
equivalent of other public thoroughfares, and so should be on the same “consti-
tutional footing” as streets and parks.63 She notes that the respondents

are asserting a right to use inexpensive means of communication –
leafletting and
in a government venue that by its nature concentrates a significant
solicitation –
number of persons in one place at one time. Furthermore, many of those persons
have time to kill and little to do, and so might be more receptive to information
and ideas than they would be in other contexts. 64
Her conclusion that the restriction cannot be justified under section 1 is
based on two concerns that push in different directions. First, she thinks that the
restriction is so vague that it does not “constitute a limit prescribed by law and
must be struck for that reason alone as unconstitutional.”‘ She believes that an
individual reading this regulation would not be able to tell whether his/her con-
duct was proscribed. Secondly, she considers that the restriction is too broad to
constitute a reasonable limit on freedom of expression. It seems to cover “vir-
tually all conceivable activity involving freedom of expression at airports.”66 A
restriction that covers the public areas of the airport has no rational connection
with the objectives of security and efficiency put forward by the government.

B. Discussion of Judgment

Justice L’Heureux-Dub6 calls for a broad and flexible approach to the def-
inition of the right to communicate on state property, which relies on a balanc-
ing of competing state and individual interests under section 1. She says that:

When calibrating the s. 1 barometer, the political quality of the stifled expression
must be weighed against whatever governmental arguments are raised in opposi-
tion. … [Section 1] enables us to construct a contextual rather than a categorical
approach, focusing not only on the scope of the right, but also on the setting in
which the freedom of expression claim is made. [emphasis added] 67

63Ibid. at 204-05. L’Heureux-Dub6 J. continues:

While airport terminals do not have a monopoly on high concentrations of passers-by,
few locations offer similar opportunities to encounter such a wide cross-section of the
community…. [IThe non-security zones within airport terminals, in my view, are prop-
erly regarded as public arenas. Therefore, the government cannot simply assert prop-
erty rights, or claim that expression is unrelated to an airport’s function, in order to jus-
tify the restriction (ibid. at 206).

64Ibid. at 193.
65Ibid. at 209.
66Ibid. at 217.
67Ibid. at 192. L’Heureux-Dub6 J. also says:

First, the measure’s purpose must be considered. The more significant the purpose, the
greater will be the latitude for regulating time, place and manner of expression. Second,
the restriction should be tailored to its objectives, such that it did not overreach its pur-
pose. Third, the courts should consider whether the restrictions are designed in a-man-
ner which tends to be free from excessive official discretion or undue arbitrariness.
Fourth, courts should assess whether in the circumstances, adequate alternative ave-
nues for expression are left open. Fifth, courts should evaluate the extent to which the
restriction ensures that the property at issue can be effectively used by the government

McGILL LAW JOURNAL

[Vol. 38

She rejects the “rigid categorization” of the American public forum doctrine.”
In her view, “certain government restrictions cannot be automatically excised
from the s. 2(b) guarantee strictly on the basis that they do not apply to locations
traditionally associated with public expression.”69 She believes that:

An overly rigid characterization focusing exclusively on place would tend to lose
sight of the forest for the trees. The First Amendment as well as the Canadian
Charter of Rights and Freedoms were designed to protect people, not places.
While certain areas can acquire a distinctive character, and people’s expectations
may be affected by where they find themselves, the rights and freedoms do not
extend to the locations, but rather to the people occupying them.70

However, she does believe that certain state properties can, as a matter of fact,
be described as public forums or arenas,’
in the sense that they are generally-
and easily open to public communication. And she accepts that the public char-
acter of these properties is “indispensable when evaluating what is a reasonable
restriction on ‘place’ in the review of a time, place, and manner regulation”
under section 1.72

When discussing the grounds for limiting communicative access under sec-
tion 1, L’Heureux-Dub6 J. says that a guarantee that encompasses all govern-
ment property “is not necessary to fulfill the Charter’s purposes, or to avoid a
stifling of free expression.”73 In her view, “some, but not all, government-owned
property is constitutionally open to the public for engaging in expressive activ-
ity.”‘ More specifically she says that

the Charter’s framers did not intend internal government offices, air traffic control
towers, prison cells and Judges’ Chambers to be made available for leafletting or
demonstrations. It is evident that the right to freedom of expression under s. 2(b)
of the Charter does not provide a right of access to all property whether public or
private…. [W]hie the Charter should be given a broad and generous interpre-

and the public for the governmental function or activity for which it was intended, apart
from its use as a public arena for expression (ibid. at 220).

6 Ibid. at 202. L’Heureux-Dub6 J. also notes that “the different structures of our two constitu-
tional documents require that the balancing test be undertaken at different stages of the analysis”
(ibid. at 178).

69Ibid. at 189.
70Ibid. at 202.
7tlbid, at 202-04. The term “public arena” is used to avoid confusion with the American “public
forum” doctrine. However, the confusion is not so easily escaped. L’Heureux-Dub6 J.’s approach
has much in common with the American approach.

721bid. at 190. L’Heureux-Dub6 J. explains:

[The public forum discussion] is almost indispensable when evaluating what is a rea-
sonable restriction on “place” in the review of a time, place and manner regulation.
Nevertheless, on the basis of our Charter’s drafting, structure, and subsequent interpre-
tation, such review belongs under s. 1, and I will treat it there (ibid.).

She continues:

Certain criteria, while not in themselves dispositive, can assist in determining what
locations are appropriately open for public expression, and bear the earmarks of “public
arenas” (ibid. at 199).

See infra note 77 and accompanying text regarding appropriate considerations for determining
whether a location is a “public arena.”

71Ibid. at 198. “Stifling of free expression” suggests a very low standard of justification.
741bid.

19931

CASE COMMENTS

tation, “it is important not to overshoot the actual purpose of the right or free-
dom in question.”75

This sounds very similar to the reasoning that leads McLachlin J. to conclude
that communication on certain state-owned properties does not fall within the
scope of subsection 2(b). However, for L’Heureux-Dub6 J. the complete insula-
tion of these “private” state properties from access claims is the outcome of bal-
ancing under section 1 and is not a ‘matter of the definition of the freedom’s
scope under subsection 2(b). She says that “[r]estrictions on expression in par-
ticular places will be harder to defend than in* others. In some places the justi-
fiability of the restrictions is immediately apparent.”’76

However, the division of state-owned properties into .two categories, pri-
vate and public forums (arenas), indicates some limits on the flexible balancing
of competing interests. In determining whether a property is “public” or “pri-
vate,” L’Heureux-Dub6 J. says that the courts are to consider such things as:
“[t]he traditional openness of such property for expressive activity”; “[w]hether
the public is ordinarily admitted to the property as of right”; “[t]he compatibility
of the property’s purpose with such expressive activities”; “[t]he impact of the
availability of such property for expressive activity on the achievement of s.
2(b)’s purpose”; and “[t]he availability of other public arenas in the vicinity for
expressive activities. 77 While the classification of a property as either a public
forum or as a private forum turns on the availability of alternatives and the sig-
nificance of the state use, it remains a general and categorical judgment that pre-
empts consideration of specific and exceptional claims.

Attaching the label public or private forum is simply the first step in the
section 1 analysis of L’Heureux-Dub6 J. It matters how a state-owned property
is classified because the two kinds of forum seem to attract different standards
of review. On the one hand, if a property is classified as a public forum, the
courts will consider that public communication must be permitted unless the
state can show good reasons for restricting it. In the words of L’Heureux-Dub6
J., “those areas traditionally associated with, or resembling, sites where all per-
sons have a right to express their views by any means at their disposal should
be vigilantly protected from legislative restrictions on speech.’7’8 The state will
be required to accommodate public communication, even though this may
involve some compromise of the state’s use of the property. On the other hand
if the property is classified as a private forum, state use of the property will have’
priority and restrictions on access will always be justified.

75Ibid. Her statement that “the right to freedom of expression under s. 2(b) of the Charter does
not provide a right of access to all property …” might suggest that the limitation is under s. 2(b).
But as she develops her approach it becomes clear that the limit is under s. 1. This statement is
taken directly from the submissions of the Attorney General of Ontario, who did argue that the
limit arises under s. 2(b).
761bid. at 198-99.
“77Ibid. at 203. Another factor is “[t]he symbolic significance of the property for the message
being communicated” (ibid.). But this would not seem to be a factor in making a general finding
about the property –

but only the particular claim.

78 Ibid. at 225.

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[Vol. 38

It is clear that open access would interfere with the recognized use of a
judge’s chambers or a prison cell gnd so would be injurious to important public
interests. But this is a general conclusion to which exceptions may be found.
Attaching the label private forum to a particular property because public com-
munication is generally incompatible with its use by the state, will mean the
exclusion of all access claims, perhaps even claims that do not interfere in a sig-
nificant way with the state’s use of the property. The significance of this over-
exclusion will depend on how broadly the private forum category is defined,
and Justice L’Heureux-Dube’s description of the category makes it sound poten-
tially very broad.

As well, Justice L’Heureux-Dub6’s use of generally defined categories of
property may mean the exclusion of specific access claims that should be
accommodated because they are important and because there is no adequate
alternative forum. The priority she gives to the state’s property use of private
state-owned properties seems to rest on an assumption that in the background
there are alternative forums for communicating any message that might be com-
municated in a private forum. Generally it may be true that the exclusion of all
communication from a private forum is not very significant because there are
a variety of public forums in the community. But in some cases there may not
be adequate alternatives for the excluded communication, no matter how many
public forums are recognized. Again the case of communication in a prison
illustrates the point. For prisoners the consequences of a general ban on com-
munication in the prison (or even a prison cell) are so serious that even though
prison discipline and security are very important, and may be made more dif-
ficult by communication in the institution, there should be some effort on the
part of the prison authorities to accommodate some forms or instances of com-
munication.

Justice L’Heureux-Dube’s approach to the definition of the access right
seems to involve a flexible balancing of competing freedom of expression and
state interests, but at least some of this flexibility is lost with the insulation of
certain state properties from all access claims. She wants to hold on to a limited
version of the public forum doctrine because she fears that in the absence of
such a doctrine the government will have virtually no “power to regulate
expressive activities” on its properties.79 Why this should be so is unclear, par-
ticularly given her willingness to set a lower standard for justifying time, place
and manner restrictions under section 1.” The real difficulty with a flexible bal-
ancing of competing interests under section 1 is that it involves a consideration
of the distribution of communicative power and an assessment of the require-
ments of different state functions.

791bid. at 202.
80L’Heureux-Dub6 J. says:

If all restrictions relating to noise, litter, orderliness, and access to property, which may
obliquely impinge upon the freedom of expression, had to be predicated upon momen-
tous governmental objectives under the Oakes test, government would hardly ever be
able to legislate effectively with respect to these matters. … If the purposes are legit-
imate, and the measures taken are reasonable having regard to all the circumstances,
the standard of absolute minimum impairment need not be applied (ibid. at 222).

1993]

CHRONIQUES DE JURISPRUDENCE

L’Heureux-Dub6 J.’s approach may limit to some degree consideration of
these matters because it declines -to consider that the state’s use of private
forums which are not ordinarily used for public communication should some-
times yield to the demands of freedom of expression. A version of the public
forum doctrine creeps into her “balancing” as a way of insulating the use of cer-
tain state properties from effective review under section 1 and of containing the
issue of the fair distribution of communicative power. Like the approach of
McLachlin J., that of L’Heureux-Dub6 J. involves an intuitive judgment about
when balancing and accommodation are required and when state property use
should be insulated from competing expression claims and the requirement of
justification under section 1. If the courts take seriously the Charter’s commit-
ment to freedom of expression, they will define the category narrowly. But if the
courts feel uncomfortable with the task of reviewing the state’s property use,
they will define the category broadly.

Conclusion

The judgments of Lamer C.J.C. and McLachlin and L’Heureux-Dub6 JJ.
set out different approaches to the issue of public communication on state-
owned property. Each approach represents an effort to fit the access issue into
the established model of freedom of expression adjudication. (Indeed all three
judgments claim to follow the adjudicative steps set out by the Court in Irwin
Toy.) All three judgments hold that the state cannot without reason exclude com-
munication from its property. But none of the judgments is prepared to engage
in an open-ended review of state property use requiring the state to justify every
restriction on access for communication under the terms of sectioft 1.

Lamer C.J.C. gives explicit priority to the state’s property use by holding
that an act of communication will fall within the protection of subsection 2(b)
only if it is compatible with the state’s use of the property. While the Chief Jus-
tice purports to follow the established two-step model of adjudication, his
approach does not seem to fit within this model. He considers that state-owned
property should not be outside the scope of judicial review –
the state should
not be able to exclude communication simply by asserting its property rights;
however, he is not prepared to treat a restriction on access as simply a limitation
on the freedom, which must be justified under section 1. A restriction on expres-
sion violates subsection 2(b) only ifthe expression is compatible with the state’s
use.

Both McLachlin and L’Heureux-Dub6 JJ. purport to follow the established
two-step model, which first defines the freedom’s scope in terms of the values
underlying the freedom and then balances the competing individual and state
interests. However, both judges seek to contain the flexible balancing of inter-
ests by introducing into the established model a version of the public forum doc-
trine which rests on a judgment about the general compatibility of expression
with the state’s use of a particular property and results in some properties having
to accommodate communication and other properties being insulated from all
claims of access. Justice McLachlin slips the public/private forum distinction
into the subsection 2(b) issue of whether the restricted expression advances the

McGILL LAW JOURNAL

[Vol. 38

values underlying the freedom. And while Justice L’Heureux-Dub6 purports to
resolve the access issue under section 1 simply by balancing competing state
and expression interests, she seems to smuggle into the balancing process a ver-
sion of the public forum doctrine which insulates a range of state properties
from all claims of access.

With all three approaches, the effort to contain the scope of review is unsta-
ble. Chief Justice Lamer’s approach rests upon a test of consistency or compat-
ibility of communicative access with the state’s property use. However, the
compatibility standard is vague and malleable and in application is bound to
draw on a variety of considerations such as the importance of the access claimed
and the availability of alternative forums. The Chief Justice’s formal test, which
seeks to avoid the second-guessing of government property use and the assess-
ment of alternative forums in the background, will be eroded to an uncertain
degree by a recognition that access to state-owned property is vital to the exer-
cise of freedom of expression and that opportunities for public communication,
generally, or for the communication of a particular viewpoint, may be inade-
quate.

The approaches of McLachlin and L’Heureux-Dub6 JJ. are no less indeter-
minate and manipulable. With both approaches, a lot turns on whether the prop-
erty is classified as a public forum or as a private forum. Yet it is difficult to
know when the public forum label will be attached so that the court balances
under section 1 the importance of the access claim and the need for restriction
(adherence to the formal test) or when the private forum label will be attached
so that priority is given to the state use of its property (insulation of the property
from all claims of access). Neither judge offers a clear account of why or when
a particular property will fall outside the ordinary review process under section
1. The insulation of certain properties from review simply reflects a desire to
limit the scope of judicial review of the state’s use of its property. But working
against this is a commitment to ensure that there is adequate space for public
discourse in all its forms and aspects. The general rules and categories which
recognize the importance of access to state-owned property, but which seek to
contain this right and limit the assessment of the state’s use of the property and
the background of opportunities for communication, will come under pressure
in different ways when they fail to identify and protect important access claims.

BOOK REVIEWS
CHRONIQUES BIBLIOGRAPHIQUES

John Tibor Syrtash, Religion and Culture in Canadian Family Law.
Toronto: Butterworths, 1992. Pp. xxiv, 189 [$50.00]. Reviewed by Shauna
Van Praagh*

Bringing the Charter Home

As an institution of Canadian social and legal life, the family in all its var-
ied forms has long been removed from the “private” sphere to which it once was
relegated. Traditionally perceived as facets of private life protected from state
intrusion, marriage, divorce, and the custody of children have been acknowl-
.edged as subjects of public scrutiny and’influence. Lawyers well-versed in the
interaction between our society and family issues may overlook, however, the
fact that authority with respect to marriage, separation and parent-child relations
comes not only from the state but also from religious and cultural institutions
and systems. Indeed, religion and culture provide significant, extensive and
detailed systems of laws, rules and practices with respect to the family. Reli-
gious doctrine and cultural norms may have something to say about one’s
choice of spouse, marriage vows, the timing, purpose and how-to details of sex-
ual relations, the availability of divorce, and the discipline and education of chil-
dren. Far from being “private,” or free from outside influence, issues such as
these can be fundamental to the fabric of a vibrant community.’

Standards of human behaviour upheld by a religious or cultural community
do not necessarily mirror the secular norms espoused by the state. The commu-
nity in question may hold significantly different views with respect to forms of

* B.Sc. 1986 (U. of Toronto), LL.B. 1989 (U. of Toronto), LL.M. 1992 (Columbia). J.S.D. Can-
didate (Columbia). Visiting Scholar and Part-time Lecturer, School of Law, King’s College Lon-
don, 1992-93. Ongoing thanks are due to the Social Sciences and Humanities Research Council
of Canada for its generous financial support.
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGiU L.J. 233
Mode de rrfrrence: (1993) 38 R.D. McGill 233
‘See C. Weisbrod, “Family, Church and State: An Essay on Constitutionalism and Religious
Authority” (1987-88) 26 J. Fam. L. 741 at 747, for an argument that, at least in the United States,
the family should be understood as an “entity that is subject to the overlapping authority of two
legal orders, one described as secular and at least theoretically integrated, and the other described
as religious and containing many individual subsystems.”

234

McGILL LAW JOURNAL

[Vol. 38

the family, behaviour of its members, and its dissolution and the impact of such
dissolution especially on children –
views which require careful consideration
in legal decision-making. Any justification for interfering with those standards
in a pluralistic society such as Canada has not yet been demarcated in a defin-
itive manner. Indeed, the question as to whether such demarcation is necessary
or possible remains open to debate.

Overlap of what might be labelled the separate jurisdictions claimed by the
state and its religious or cultural communities forms the basis for the recently
published book Religion and Culture in Canadian Family Law, written by John
Tibor Syrtash.2 Syrtash sets himself the task of investigating the spheres of
authority represented by the normative systems of religious and cultural com-
munities which co-exist in Canada, and of addressing the issue of how the
Canadian Charter of Rights and Freedoms3 may affect not only the resolution
of family law disputes over divorce and child custody but also the nature of the
fora in which those disputes are addressed. This is a huge project, the scope of
which defies complete treatment in one book, and any critique must take into
account the boundaries within which Syrtash’s work has been carried out. As a
family lawyer, Syrtash offers an analysis that is often more practice-oriented
than theoretical. Further, as a specialist who played an important role in legis-
lative reform responding to the problem of the get in Jewish divorce, his cov-
erage of this issue is particularly thorough when compared to the rest of the
book.

A realistic assessment of the extent to which the issues raised can be cov-
ered in a book of this size and proportion reveals that Religion and Culture in
Canadian Family Law cannot fully live up to the broad goals expressed by the
author –
that is, “‘to explore the extent to which Canada’s majority culture
respects and accommodates its own multicultural legal principles and minority
religions and cultures.”4 The book does provide, however, a good introduction
to the intersection of family law and constitutional rights in Canada and to the
meaning of the protection of multiculturalism in the context of family issues.
Syrtash offers useful examples, references and sources, and his survey of Cana-
dian case law will prove very helpful to family and constitutional lawyers. Most
importantly, Syrtash poses difficult questions and challenges that need thought-
ful responses, and neither he nor his readers should be frustrated or surprised
that those responses have not yet been provided in full. The exploration that
Syrtash begins here invites further work to be done, both of a legal academic
nature and of a social sciences nature, before we can articulate clearly the way
in which freedom of religion, multiculturalism and family law work together in
Canada.

Syrtash’s book, with its focus on three areas –

the cultural identity of chil-
den as an element of custody decision-making, the validity of religious and abo-
riginal proceedings and institutions, and the state’s role in the removal of bar-

2J.T. Syrtash, Religion and Culture in Canadian Family Law (Toronto: Butterworths, 1992).
3Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
4Syrtash, supra note 2 at 179.

B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].

1993]

BOOK REVIEWS

riers to religious remarriage –
comes at an opportune time. The Supreme Court
of Canada heard appeals from British Columbia and Quebec on the question of
religion and child custody in early 1993;’ aboriginal rights have been recog-
nized by section 35 of the Charter and appear to be close to a transformation
into some form of aboriginal self-government;6 and both litigation and strong
political mobilization by Jewish women are to be expected with respect to the
issue of Jewish divorce.’ Syrta sh is quick to herald the effect that the Charter
will have on family law. As he points out, subsection 2(a), which guarantees
freedom of religion, and section 27, which mandates interpretation of the Char-
ter in a way consistent with the enhancement of the multicultural heritage of
Canadians, may dramatically change the landscape of some family law issues.
Unlike the United States, where family law has long been associated with fun-
damental constitutional rights, especially the right to privacy, Canada has not
been quick to link Charter rights and freedoms to issues relating to spouses, par-
ents and children! Syrtash foresees an end to that reluctance in the near future,
and provides the reader with much to contemplate -as to the desirability and
workability of the Charter’s application to the family.

I. Religion and Culture for Children

Syrtash addresses the subject of his work in three major chapters and this
review will mirror that structure with a discussion of each chapter followed by
general commentary on the intersection of and relationship among the topics.

The author begins by looking at the accommodation by courts of religious
and cultural heritage. He does so by investigating the approach of courts to cus-
tody decision-making in situations where religion or culture of the parents and
child is at issue. Traditionally, the custodial parent has had control over the reli-
gious upbringing and education of the child. While this “rule” finds its roots in
English common law, whereby a father had near-absolute control over the reli-

5young v. Young (1990), 50 B.C.L.R. (2d) 1, 75 D.L.R. (4th) 46,29 R.F.L. (3d) 113 (B.C.C.A.),
rev’g (1989), 24 R.F.L. (2d) 193 (B.C.S.C.); Droit de lafamille -1150, [1991] R.J.Q. 306, [1991]
R.D.F. 112 (C.A.), aff’g [1988] R.D.F. 40 (Que. Sup. Ct.). Application for leave to appeal granted,
16 May 1991 (L’Heureux-Dub6, Gonthier and Iacobucci JJ.). Both appeals were heard together at
the end of January 1993.

6According to the Charter, s. 35(1), “[tjhe existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.” The Supreme Court has begun to fill out
the meaning of this protection (R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385). Further
and more importantly, First Nations have taken an. active role in constitutional discussions in
asserting their right to self-government within Canada. Even with the failure of the Charlottetown
Accord (Consensus Report on the Constitution, Charlottetown, August 28, 1992, Final Text
(Ottawa: Supply and Services Canada, 1992) [Cat. No. CP22-45/1992]), aboriginal self-
government will likely retain priority status on the agenda of constitutional reform.

7This has been and continues to be the case in New York (see e.g. L. Lagnado, “Of Human Bond-
age” The [New York] Village Voice (14 July 1992) 10, with respect to the response to and political
mobilization around get legislation and case law) and in Israel. Given the political pressure that
went into the introduction of get legislation in Canada (see e.g. D. Lipovenko, “The Ties that Con-
tinue to Bind” The [Toronto] Globe and Mail (28 January 1989) D2), it is easy to imagine ongoing
conflict and development in this area. The get is discussed in. Part C of this Review.

8 See e.g. D.A.R. Thompson, “Why Hasn’t the Charter Mattered in Child Protection?” (1989) 8

Can. J. Fain. L. 133.

REVUE DE DROIT DE McGILL

[Vol. 38

gious identity of his child,9 it has continued to form part of the distinction
between custody and access for Canadian parents. The parent having custody
generally directs the religious or cultural development of the child, while the
access parent, with the right to visitation of the child, acquiesces to the custodial
parent’s wishes in this respect.

In a multicultural country such as Canada, where intermarriage is common,
conflicts between parents of different religions or cultures are exposed in the
courts when divorce litigation includes the issue of custody. Questions of reli-
gious observance and belief and of cultural behaviour and standards, usually
resolved by and within each family, are handed to judges. Thus begins the jug-
gling act among the best interests of the child, the individual freedom of religion
of the parents, the scope of custody, and the Divorce Act which mandates as
much contact as possible between a child and each of the parents after marriage
breakdown.’ With section 27 of the Charter and its principled support of mul-
ticulturalism in Canada superimposed on the decision-making process, judges
exercise an especially daunting responsibility. Syrtash urges judges not only to
discard their prejudices against religions and cultures which do not correspond
to their own, but also to respond positively to the claims of access parents, usu-
ally fathers, who wish to share their beliefs and practices with their children in
a way which might “conflict” with the desires of the custodial parents, usually
mothers.”

Syrtash undertakes an overview of the jurisprudence of the ten provinces
and the approaches that have been taken by courts to the question of religion or
culture in custody decision-making.” The overview attempts to be complete,
and, indeed, it paints a good general picture of the state of the law in Canada
prior to the enactment of subsection 16(10) of the Divorce Act and to the intro-
duction of the Charter, as well as of the key cases since then that signal what
Syrtash calls the move away from the traditional approach. 3 The reader begins
to get a sense of the complicated factual scenarios that form the basis for the
legal issues at stake. Should custody be curtailed for a parent who joins a fun-

9This control went along with general custodial rights of the father. For a review of the issues
and trends affecting children, parents and the state in the United Kingdom, see e.g. A. Bainham,
Children, Parents and the State (London: Sweet & Maxwell, 1988).

‘Divorce Act, R.S.C. 1985 (2d Supp.), c. 3, s. 16(10). The subsection reads “[tihe court shall
give effect to the principle that a child of the marriage should have as much contact with each
spouse as is consistent with the best interests of the child.”

ISee generally Syrtash, supra note 2 at 67-91.
‘2Ibid. at 7-49, entitled “Traditional Judicial Approaches and Principles.”
13The organization of the overview leaves something to be desired: in Part II, Syrtash covers
what he calls traditional judicial approaches and principles, and, in Parts IV and V, he updates that
overview in light of s. 16(10) of the Divorce Act and the Charter. This structure for the chapter
is clear in theory but Syrtash confuses it by introducing the post s. 16(10) and Charter cases
throughout the summary of “traditional” approaches. For example, see the section on Quebec,
starting at 32, where he begins with reference to the decision of the Court of Appeal in Droit de
la Famille-955, [1991] R.J.Q. 599, [1991) R.D.. 255 (C.A.), but then leaves description of the
facts and discussion of the case to a section of the text found forty pages later. It would have been
preferable for Syrtash to have stated that he was trying to offer a full picture of each province’s
position in the overview and that analysis of the key cases involving freedom of religion would
follow.

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CHRONIQUES BIBLIOGRAPHIQUES

damentalist Protestant sect which disapproves of public school, mandates dress
standards, and demands hours of time every week on the part of the parent? If
a Jehovah’s Witness parent has visitation rights, should they be limited accord-
ing to the wishes of the custodial parent who practices a different religion? What
if the teachings of the religion of one parent clash dramatically with those of the
religion of the other? Must a deeply religious Orthodox Jew accept compromise
as dictated by a secular court with respect to the nature of his or her practices?
Can a trial judge determine the best interests of a child in this context without
comparing religions or cultures and deciding which is less “harmful” from a
secular perspective? Does such a decision unjustifiably contravene freedom of
religion?

Syrtash offers a fairly clear summary of the partial answers offered by the
courts when confronted by these questions. He also tries to sketch a general
approach to be taken by the law to these and other, hypothetical, situations, but
he is less successful in this endeavour.14 From Syrtash’s perspective, Canadian
courts, especially those in Ontario, British Columbia and Quebec, are moving
away from a traditional approach to custody.5 That is, instead of allowing the
custodial parent to exercise control over the religious or cultural identity of the
child –
courts are now allowing access parents to modify the scope of custodial rights.
Syrtash fully encourages what he calls this erosion of custodial prerogative. He
is an enthusiastic supporter of the full development of a child’s cultural identity,
and he assumes that custodial rights, as traditionally defined, undermine the rec-
ognition and full flourishing of that identity.

an approach which, Syrtash admits, has the advantage of stability –

Syrtash’s response is based on a dichotomy between a traditional pro-
custodial approach and a “new” pro-access approach, where the latter is much
preferred. The reader should ask, at this point, about the risks inherent in a cus-
tody decision-making process that invites complication and conflict. We may
agree with Syrtash that a child can grow up with a mix of cultures and religious
beliefs without being harmed in any way, at least in any way with which the law
should concern itself. Still, we may worry about the possibility of abusive
access parents who brandish their religious rights over the heads of custodial
parents. Syrtash places his trust in expert testimony in order to deal with this
possibility. He argues that evidence put before the judge should indicate the
degree to which each parent is tolerant of the beliefs and practices of the other.
Says Syrtash, “the more a litigant attempts to accommodate his partner’s reli-
gious ideology and way of life, the more sympathetic both the court and the
assessors will be to his claim for custody or enhanced access.”‘ 6 The Canadian

14Very little attention has been paid to these questions in Canadian legal literature. See J. Mucci,
“The Effect of Religious Beliefs in Child Custody Disputes” (1986) 5 Can. J. Fam. L. 353; V.
Toselli, “Religion in Custody Disputes” (1990) 25 R.F.L. (3d) 261; F.H. Zemans, “Cultural Diver-
sity in Custody Disputes” in R.S. Abella & C. L’Heureux-Dub6, eds., Family Law, Dimensions of
Justice (Toronto: Butterworths, 1983) 137.

15Contrary to this trend, the Quebec Court of Appeal decision in Droit de la famille – 1150,
supra note 5, on appeal to the Supreme Court of Canada, does exemplify the approach criticized
by Syrtash.

16Syrtash, supra note 2 at 85.

McGILL LAW JOURNAL

[Vol. 38

response, as offered by Syrtash, to the issue of religion or culture in custody
decision-making thus appears to be grounded in tolerance and flexibility. If the
custodial parent seems hostile to the behaviour and influence of the visitation
parent, custody may be limited or indeed terminated. On the other hand, if the
access parent is unreasonable and unaccommodating, visitation rights may be
severely restricted.

The approach that Syrtash puts forward must be commended in several
respects, the most important being its implied critique of judges who rely on
their own mainstream values and beliefs and fail to show adequate concern for
minority groups and extreme communities. Syrtash is right to question the rea-
sons for which judges treat isolated fundamentalist sects in a way different from
that in which recognized religions and cultural norms are treated. Further, Syr-
tash is correct in his speculation on the Charter’s growing significance with
respect to custody issues. Sections 2(a) and 27 definitely will appear more often
in legal argument as relevant to the assessment of best interests in the resolution
of custody disputes. However, while his solution of tolerance is nice in theory,
several substantial concerns remain and require careful consideration.

First, Syrtash is happy to restrict the “traditional” scope of the rights of the
custodial parent, but traditional assumptions are also to be found at the root of
claims regarding visitation rights made by the access parent. That is, the idea
that the full recognition of individual freedom of religion includes the ability to
pass on one’s religious beliefs to one’s children and to enforce religious prac-
tices within the family, is not a new one and, in fact, has informed the traditional
concept of custody. Rather than challenging that idea, Syrtash seems content
merely to extend it to the realm of visitation, thus ensuring that both parents as
individuals can exercise their freedom in the form of power over their children.”1
In the United States, this has led to an evolution from complaints by custodial
parents about the activities of visitation parents to claims by the non-custodial
parent with respect to the behaviour of the parent with custody. Privacy rights
combined with the right of the. free exercise of religion have been enforced on
behalf of the access parent such that post-divorce life for the custodial parent
becomes extremely difficult. The custodial parent may have “physical” custody,
meaning that the child actually resides with her, but the access parent, granted
“spiritual” custody in the interest of protecting his individual freedom, can make
decisions with respect to religious education and practices in a way that may
severely curtail the custodial parent’s lifestyle and, indeed, beliefs.”8 Such intru-
sion on the part of courts in the day-to-day life of parents and children should
serve as a danger signal to Canadian lawyers who may genuinely want to foster
the cultural heritage of children. Second, the problem outlined above is especi-

17For views in the United States similar to that expressed by Syrtash, see e.g. Note, “The Estab-
lishment Clause and Religion in Child Custody Disputes: Factoring Religion into the Best Interest
Equation” (1984) 82 Mich. L. Rev. 1702; R.C. Mangrum, “Exclusive Reliance on Best Interest
May Be Unconstitutional: Religion as a Factor in Child Custody Cases” (1981) 15 Creighton L.
Rev. 25.

‘SSee J.C. Paul, “‘You Get the House. I Get the Car. You Get the Kids. I Get their Souls.’ The
Impact of Spiritual Custody Awards on the Free Exercise Rights of Custodial Parents” (1989) 138
U. Penn. L. Rev. 583.

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BOOK REVIEWS

ally serious from the perspective of mothers and lawyers who care about gender
equality in family law reform. Syrtash acknowledges that women should be
wary of what he welcomes as the erosion of custodial rights,19 but he dismisses
valid concerns without adequate discussion. It is significant that many or most
of the cases in which religion or culture is raised as a factor in custody decision-
making, are those in which the father seeks to expand his rights to visitation.
It is certainly the case that the appeals before the Supreme Court of Canada on
this issue involve fathers who are arguing on the basis of individual freedom of
religion that their visitation rights were unfairly and unconstitutionally limited
by the trial judge who determined the best interests of the child. Both in Young
v. Young and in Droit de la Famille – 1150,1 the Jehovah’s Witness father ini-
tially was ordered by the trial judge to restrict his religious activities when with
his children. While the Quebec Court of Appeal left that order untouched, the
British Columbia Court of Appeal in Young took the approach supported by Syr-
tash and loosened the restrictions, saying that the sharing of religious beliefs by
the father could take place subject to any harm thereby caused to the child.22
While it is true that we should welcome the open-mindedness of judges who
accept a multiplicity of normative value systems, and that we should be slow to
accept any rigid approach to the identity formation of children who, especially
when the offspring of an intermarriage, are never simple and monolithic, it is
also true that custody must be meaningful and as stable as possible. If, as would
be expected, subsection 2(a) freedom of religion is breached by a court order
that “gags” a parent with respect to religious discussions and practices with his
children, then the attendant section 1 analysis must include consideration of the
meaning of custody. The prospect of custodial mothers being subject to a clever
constitutional attack whereby their freedom is curtailed and the primary impor-
tance of care-giving in any assessment of best interests set aside, is not a happy
one.

Third, the notion of harm to children has delineated the limit of a parent’s
freedom of religion. Syrtash retains harm as the appropriate test but could be
more clear on what he thinks harm should mean and in what circumstances it
should affect custody or visitation. Harm to children might be embodied in reli-
gious norms, beliefs and teachings. In another sense, children may be seriously
hurt as punishment for non-conformity with tenets of a religious community. In
yet another context, the insularity of the community may shield parents and the
community itself from recognition of and response to the harm children may
experience. Finally, courts may consider not only the harm associated with the
practices of one of the parents, but also the supposed harm caused by conflict

‘9Syrtash, supra note 2 at 68: “Given that the custodial parents are usually women, those con-
cerned with ‘women’s issues’ may well be alarmed to see that the rights of the custodial parent
are being further eroded as a result of these legislative changes and judicial decisions.”
20This is true of the cases described in Syrtash’s survey of Canadian case law, as the author him-

self recognizes.

21Young v. Young, supra note 5; Droit de la famille – 1150, supra note 5.
22But see the dissenting judgment of Southin J.A. in Young v. Young, ibid. at 8, for an eloquent
rejection of the majority’s position in favour of the concept and scope of guardianship as it has been
understood in law. Madam Justice Southin expresses some of the same concerns as are raised by
this Book Review.

REVUE DE DROIT DE McGILL

[Vol. 38

between parents who hold different beliefs and are members of different com-
munities.’ If full recognition of the individual’s freedom of religion includes the
ability to share one’s religious beliefs with one’s children, then limiting that
freedom in the name of harm calls for careful steering between discrimination
on the basis of religion or culture and the valid protection of the interests of chil-
dren. Refusal to grant custody or generous visitation rights to a parent, partly
because of the harm associated with that parent’s religious or cultural practices,
may be the result of pure bias on the part of the judge. On the other hand, it may
be the result of a thoughtful and extremely complex consideration of the inter-
ests of a child in Canada, which, while well-motivated and worthy of applause,
may still be experienced by some religious or cultural communities as a direct
attack.24 It is in the realm of the latter kind of decision-making that further artic-
ulation and guidance are needed.

Child custody decision-making is never easy and, when made subject to
the Charter, becomes even more sensitive. Syrtash suggests that, when it comes
to children, no rules or presumptions should apply. 5 Instead, a mix of factors
should be taken into account in each case and, from that mix, the appropriate
court order should be fashioned. The miraculous nature of such an exercise is
illusory, and it is slightly misleading and inconsistent for Syrtash to insist on
individual rights for parents but refuse to offer any general guidelines on behalf
of the children themselves whose development as bi- or multi-cultural individ-
ual Canadians is at stake.

Syrtash turns his attention to how children themselves may be brought into
the analysis in a significant way in a short section of the first chapter, entitled
“Custody, Access and Child Protection Disputes Among Aboriginal Peoples.”26
In a terse and’limited discussion, Syrtash touches on an area of the law that may
prove to be the most fruitful in the ongoing development and analysis. of these
issues in Canada. Lawyers and others working with aboriginal children, whether
in custody, access or placement contexts, know too well the need for sensitivity
and understanding with respect to the identity of aboriginal children and their
vital membership in the aboriginal communities of Canada. Further, the risks.
and consequences of racism and bias in rules developed in Canadian law are
under constant investigation, and it has been recognized that different norms
exist in different communities.

23On “direct” and “indirect” harm of the consequences of parental religious freedom in the con-
text of child custody decision-making, see Toselli, supra note 14. According to Toselli, a distinc-
tion can be drawn between cases in which the specific religious practices are deemed harmful
(“direct”) and those in which exposure to the clash of different religious beliefs has been found
harmful to the child (“indirect”).
24This is not to say that such “interference” in response to harm to children is not necessary. It
is a recognition that, no matter what solution is reached in a case, unless perhaps that solution is
offered by the community itself, the individual parent and his or her religious or cultural commu-
nity may perceive state criticism of their beliefs and practices.

25Syrtash, supra note 2 at 91, asserts this in the context of a section entitled “The Charter Cases
and Medical Opinion: Law vs. Medicine” where he discusses the psychological implications of
growing up with exposure to two religious or value systems and concludes that there should be
no problem with this if the parents in any given case are sufficiently flexible. The statement is
made, however, as a general conclusion to the chapter.

261bid. at 49-67.

1993]

CHRONIQUES BIBLIOGRAPIQUES

Here, Syrtash’s rejection of presumptions or rules with respect to children
may be meaningful. Instead of perceiving a need to balance “native rights”
against a child’s, “best interests,” we can work towards an understanding of the
intertwining relationship between the two concepts. From the perspective of the
children themselves, the strong ‘support of aboriginal communities is crucial;
from the perspective of those communities, the ability to pass on cultural iden-
tity to the next generation is fundamental. Syrtash offers a select review of juris-
prudence and legislation and rightly points out that a change in process is a pre-
liminary and effective step in the gradual evolution of substantive law. Thus, as
a striking example of willingness to recognize the community’s claims with
respect to young members, the Ontario Child and Family Services Act perceives
of the particular Indian band as a party to child placement proceedings with
claims or interests to be considered.z7 Syrtash also refers to the 1991 Report of
the Aboriginal Justice Inquiry of Manitoba and the Report’s assertion that “[t]he
Aboriginal view of the ‘best interest’ of the child takes into account the needs
of the family and of the community.”
Instead of framing the issue in terms of
the constitutional rights of the parent, Syrtash moves closer to his goal of truly
responding to the cultural needs of Canadian children.

II. Resolving Conflict within the Community

In the second chapter, entitled “Alternative ‘Cultural’ Dispute Resolu-
tion,”29 Syrtash addresses more directly the interactions among secular and reli-
gious or cultural systems of “law.” Again, the conflict between tiaditional abo-
riginal customs, ceremonies and standards, and those dictated by family law, is
perhaps the most topical in the early 1990s in Canada. Syrtash draws attention
to situations where customary living arrangements have been considered equi-
valent to marriage, with all its attendant consequences including property divi-
sion, and where aboriginal “adoptions” have been considered valid. In addition
to the aboriginal experience, many religions have comprehensive systems of
law which respond to all matters related to the family. Syrtash refers to Ortho-
dox Judaism, Catholicism and Islam for examples of religious legal systems, but
could compare more clearly, for the benefit of the reader, the parallel yet distinc-
tive structures that they offer with respect to entry into and exit from marriage,
and the fora they envisage for the resolution of conflict.

The question which Syrtash asks is whether “accommodation” will be
expanded under the Charter as religious and cultural group rights are recog-
nized and strengthened. While he does not commit himself as to the desirability
of alternative cultural dispute resolution, he does seem sympathetic to the idea
of cultural or religious groups convening their own “courts” in order to deal
with conflicts in accordance with their own particular norms, customs and laws.
The serious issues at stake here starkly illustrate the complexity of existing
as a diverse society made up of many communities. Here again, while he suc-

27Child and Family Services Act, R.S.O. 1990, c. C.11, s. 39(1)4, discussed in Syrtash, ibid. at

56-57.

2(Manitoba: Queen’s Printer, 1991), discussed in Syrtash, ibid. at 64.
29Syrtash, ibid. at 94-109.

McGILL LAW JOURNAL

(Vol. 38

ceeds in outlining the current state of Canadian law and the factors that deserve
consideration, Syrtash falls down in his ability to articulate the problems and a
consistent approach to be taken in resolving those problems. How far should
Canada be prepared to go in “respecting” alternative dispute resolution based on
culture, when such respect might mean that members of communities are forced
to forego the jurisdiction and legislative policy of the state? In conflicts between
secular and religious, general and specific, state interference requires careful
justification. That justification can only be articulated after full discussion in
which all the voices which will be affected can be heard. This is especially true
for women, who stand to suffer a great deal if subjected to the norms of a patri-
archal religion or culture, and who may prefer to take advantage of gains in the
area of equality made in Canadian family law. Syrtash acknowledges that “dis-
advantaged spouses” –
that is, women – may be adversely affected by a fam-
ily law system that defers to religious or cultural traditions,” but he is willing
to welcome, even if cautiously, some movement toward the dissemination of
family issues in the hands of those in power in each community. Indeed, he
implies, albeit in the following chapter, that accommodation, which may be con-
stitutionally mandated, might put into question the civil law status of Canadian
family law.3

The reader should adopt Syrtash’s position with caution. However exciting
it is to live in a state derived from many communities, the rights of which may
be protected by the state’s constitution, family law matters remain within the
civil law of a progressive, democratic nation such as Canada. 2 The fact that
Canadian citizens may define themselves as members of many communities and
may feel obliged to follow the norms of those communities, does not put the
general status of family law in jeopardy. That is, even substantive recognition
of parallel jurisdictions in some matters, while it exposes the myth of a mono-
lithic family and family law, does not erase the state’s interest and responsibility
for family law matters. Thus, autonomous aboriginal tribunals may be desirable,
and greater understanding of the beliefs and practices of religious communities
may be necessary, but abdication to communal jurisdictions without adequate
insurance for members, especially women and children, is irresponsible.

Canada is not at any immediate risk of having its family law chopped up
depending on the religious or cultural identity of each Canadian and his or her

30Whiile Syrtash deserves some credit for noting the concerns of women members of aboriginal
communities (ibid. at 107, 109), he fails to indicate how those concerns should affect a principle
whereby civil law courts should defer to or enforce the decisions of aboriginal courts. Further, he
mentions the systems of rules that govern Jewish, Islamic, Catholic and Anglican family matters,
but does not consider the concerns of women in these contexts (ibid. at 99-106).
31Ibid. at 146. In his discussion of the get, Syrtash disputes the statement by a court that law
relating to marriage and divorce is a civil matter and can’t become schismatic by reference to var-
ious religions. That is, says Syrtash, courts will now have to take into account those various reli-
gions. The reader is left wondering how to reconcile the notion of the civil law of marriage and
divorce with accommodation that may indeed result in fragmentation.
32This is not to suggest that family law is uniform across Canada (provincial jurisdiction over
property division and child custody and support, for example, ensures that it is not); nor is it to
deny the need for further flexibility in family law in response to the norms of different cultural
communities.

1993]

BOOK REVIEWS

membership in a particular group. Syrtash’s inference that this might be possible
is problematic and, indeed, surprising given the third and final substantive chap-
ter of his book which deals with the removal of barriers to religious remarriage.
In that chapter, he addresses explicit interference by a liberal democratic state
with the jurisdiction of Jewish law and its implementation. Legislative steps
taken by the state itself are accepted as sometimes necessary for the exercise of
the right to freedom of religion that Syrtash emphasizes as so crucial.

I. Divorce in Jewish Law and Canada’s Legislative Response

In “Removing the Barriers to Religious Remarriage: Rights and Reme-
dies,””3 Syrtash concentrates on the issue of the Jewish divorce or get.’ Briefly
put for the purposes of this review, Jewish women face severe hardship in the
form of the get, or bill of divorce. While divorce is acknowledged by Jewish law
and rules surrounding marriage breakdown and the expectations and protection
of the spouses have been part of the legal apparatus for millenia, the device of
the get can be extremely disadvantageous for women. Upon divorce, a Jewish
husband must give a get to his ex-wife, and the wife must accept it. The pro-
cedure for giving and receiving a get is relatively simple –
the document is
supervised by rabbis and signed by witnesses, and is essentially a private rather
than religiously ordained act. If the husband refuses to give a get, the wife can-
not remarry according to Orthodox Jewish practice. Furthermore, if she remar-
ries in a civil ceremony, for example, her children will be labelled mamzerim
and will not be recognized as full members of the Orthodox Jewish community
in that they too will be denied the opportunity of marriage within the precepts
of Jewish law. Syrtash correctly points out that this problem is not restricted to
the relatively small Orthodox Jewish community in Canada; instead it has reper-
cussions for all Jews who wish to follow this traditional procedure and who
want their children to be recognized as full members of the Orthodox Jewish
community should they so desire. If, alternatively, the woman refuses to receive
the get, the husband can appeal for a type of rabbinical dispensation such that
he can remarry. However, even if he fails to do so, any children of a second mar-
riage will follow the religion and status in the community of the mother and
therefore will not be subject to the same stigma.

The importance of the get to Jewish women has made it an ideal tool for
blackmail. What Syrtash refers to as “recalcitrant spouses” may refuse to grant
a get until serious concessions on issues of property division and support are
made by the “victimized spouse.” In terms which indicate more clearly the non-
gender-neutral character of the problem,”5 husbands hold a disparate amount of
power with respect to their wives when it comes to divorce proceedings. Wives
who fail to receive a get are fittingly referred to as agunot or “chained women.”

33Syrtash, supra note 2 at 111-78.
34Syrtash refers to the GET spelled in block letters throughout his discussion, ostensibly to indi-
cate that this is not an English word. This seems jarring to the reader and this Review will italicize
the word instead.
35Syrtash tries to be gender-neutral throughout the chapter, but this attempt is extremely awk-

ward in the context of a gender-specific problem.

REVUE DE DROIT DE McGILL

[Vol. 38

Further, a get given by the husband as a result of pressure –
for example under
threat of fine or imprisonment – by a secular court, could be characterized as
coerced and therefore invalid according to Jewish law. Any attempt by the state
and its courts to aid a wife who has not been granted a get must be carefully
designed such that it achieves its objective without contravening either the reli-
gious law itself, which the litigants ostensibly follow and obey, or the principle
of the separation of church and state.

Syrtash rightly asserts that Canada and New York State have been leaders
in enacting legislation as a response to a serious problem in the Jewish commu-
nity.36 As he points out, the coercive aspects of the get from the perspective of
Jewish women in Canada have been surveyed and documented by B’nai Brith
Canada in a study entitled “The Use of ‘Get’ as a Bargaining Tool in Jewish
Divorce Proceedings.”37 Ensuing awareness of the phenomenon and pressure
from Jewish women has led to legislative reform both of the Canadian Divorce
Act and of the Ontario Family Law Act.38 Under the latter, a court may set aside
a separation agreement if removal of a barrier to remarriage formed part of the
consideration of the contract.39 This option mirrors the principles of coercion
and unconscionability in contract law which have been utilized, especially in
New York State,’ prior to and parallel with legislation, but Syrtash warns that
resort to the provision may be impractical, largely because of the possibility that
get-giving perceived to be coerced will be invalidated by Jewish law.

More clever and useful is the “affidavit route” available in essentially the
same form under both the Divorce Act and the Ontario Family Law Act. Syrtash,
as an Ontario family lawyer, pays more attention to the provincial legislation
than to the federal, and, indeed, Ontario preceded Canada in introducing reme-
dial provisions. This review, however, will refer primarily to the Divorce Act but
not without a passing word of support for further initiatives on the part of prov-
inces other than Ontario. The affidavit route, set out in section 21.1 of the
Divorce Act, stipulates that, in any proceedings under the Act, one spouse may
file an affidavit stating that the other spouse has failed to remove all barriers to
remarriage within his or her control. If, within fifteen days, the barrier has not
been removed, the court may dismiss any application filed by the withholding
spouse. Thus, in any application or defense relating to the granting of a divorce
itself, custody of the children, child support or spousal support, the fact that the
get has not been given upon request may have a severe impact on the position
of the “recalcitrant” spouse, usually the husband. Unless that spouse has no
interest in making or defending a claim, he thus will be heavily encouraged to

36In Canada, An Act to Amend the Divorce Act (Barriers to Religious Remarriage), S.C. 1990,
c. 18, amending R.S.C. 1985 (2d Supp.),’c. 3, s. 21.1 [hereinafter Divorce Act]; Family Law Act,
R.S.O. 1990, c. F3, ss. 2(4)-(6), 56(5)-(7) [hereinafter Family Law Act]. In New York State, N.Y.
Domestic Relations Law 253 (Consol. 1990).

37Syrtash, supra note 2 at 121-22.
38Divorce Act, s. 21.1; Family Law Act, ss. 2(4)-(6), 56(5)-(7).
39Family Law Act, s. 56(5)-(7).
40See e.g, Avitzur v. Avitzur, 446 N.E. 2d 136 (N.Y. 1983), cert. denied, 464 U.S. 817 (1983);
Perl v. Perl, 512 N.Y.S. 2d 372 (N.Y. App. Div. 1987); Golding v. Golding, 581 N.Y.S. 2d 4 (N.Y.
App. Div. 1992).

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CHRONIQUES BIBLIOGRAPI-HQUES

give the get and thereby remove any barrier to remarriage. According to Syr-
tash, this route avoids the risk of invalidation of the get-giving within Jewish
law because the secular court, rather than ordering a get or making it a condition
for an agreement between the ex-spouses, merely makes a decision on an appli-
cation dealing with a civil matter. Sleight of hand, perhaps, but this is a realm
of jurisdictional overlap where manipulation of particulars may make all the dif-
ference to general interpretation, whether by judges or rabbis.

Syrtash undertakes an in-depth examination of the get legislative reforms
and his discussion in this third and most comprehensive part of the book can be
roughly divided into areas of principle and detail. While the detailed treatment,
complete with sample affidavits and suggestions on the timing and exercise of
the relevant .procedures, should be very helpful to family lawyers, this review
will focus on the principled arguments relating to the constitutionality of the
legislation. The constitutional challenge expected in the future will invoke sub-
section 2(a) of the Charter and will argue that the legislation impermissibly
interferes with individual freedom of religion. The lawyers who will argue the
case, at present still hypothetical, would be well advised to start with Syrtash’s
book for initial references and the outline of an argument in favour of constitu-
tionality. Indeed, the author’s discussion of the issue and his inclusion of both
a memorandum by Dean John D. Whyte”‘ prepared for the purposes of the
Ontario legislature that introduced and passed the Family Law Act reforms, and
the speech made by the Minister of Justicein the House of Commons regarding
the change to the Divorce Act,”2 form the basis for a strong appellate factum.
At stake here is the purpose and content of subsection 2(a) protection of
freedom of conscience and religion. The scope of subsection 2(a) of the Charter
has received little attention by the Supreme Court of Canada to date, although
Dickson C.J.C.’s reasons for the majority judgment in R. v. Big M Drug Mart”3
set out a general purpose of the provision whereby individual religious belief
and practice may be neither coerced nor constrained by the state.’ In order to
argue for the constitutionality of the get legislation, it is necessary to overcome
two general objections: first, that, by addressing one specific religious predic-
ament, the state supports or recognizes that religion; and, second, that the
attachment of civil consequences to religious actions unjustifiably interferes
with or coerces religious practice. These two objections roughly follow the two
prongs of anti-establishment and free exercise of religion under the First
Amendment of the United States Constitution, and it is interesting to speculate
that the get issue might force Canadian courts to confront the question of how
similar the contours of subsection 2(a) protection are to those characterizing
First Amendment jurisprudence.

4’Syrtash, supra note 2 at 137-43.
42jbid. at 153-57.
41[1985I 1 S.C.R. 295; 18 D.L.R. (4th) 321 [cited to S.C.R.].
“4Ibid. at 336ff.
45According to the First Amendment, “Congress shall make no law respecting an establishment
of religion or prohibiting the free exercise thereof.” For arguments with respect to the constitution-
ality of the New York “get statute” and cases overturning separation agreements on the basis of
get-related coercion, see e.g. T. Rostain, “Permissible Accommodations of Religion: Reconsidering

McGILL LAW JOURNAL

[Vol. 38

When these objections are considered in the context of the get legislation,
the fact that the terms of the provision are religion-neutral and never mention
the term get clearly will not hide the obvious purpose of remedying a phenom-
enon found in Judaism; neither will the argument that the granting of the get is
not per se a religious act in Jewish law, given the fact that the procedure is nei-
ther solemnized nor holy, overcome the assertion that the court is interfering
indirectly with a practice associated with religious belief and affiliation. Aside
from these arguments, however, Syrtash draws on the memorandum by Dean
Whyte in order to characterize the legislative relief embodied in the Divorce Act
as necessary for the recognition of freedom of religion, rather than as impermis-
sible state recognition or establishment of religion. Thus, goes the argument,
subsection 2(a) is not breached when a religious practice is not explicitly
imposed by the state; nor is it breached when acknowledgement of the religion
by the legislatures and courts is in the interest of freedom of religion itself.

While this position is appealing from the perspective of supporters of the
legislation, itmay miss its mark if applied exclusively to subsection 2(a) and not
to a section 1 analysis under the Charter. That is, comprehension of the extor-
tionate potential of the get-holder’s power is crucial to the upholding of these
reforms to divorce legislation. These are remedial provisions passed in response
to the voices of women in a particular community, and any assessment of their
constitutionality in the context of freedom of religion must balance the purposes
of the reforms against the minimal intrusion and entanglement .that those
reforms represent. Section 1 is ideally suited to such an analysis. Indeed, the
Supreme Court of Canada has indicated, perhaps most clearly in Dickson
C.J.C.’s reasons for the majority judgment in R. v. Keegstra,4 its readiness to
give an extremely wide scope to section 2 freedoms and to leave to section 1
any balancing of the severity of the breach against the reasons for the legislation
and the other Charter rights and freedoms that may demand it. The arguments
that Syrtash offers on behalf of the validity of the amendments to the Divorce
Act and the Ontario Family Law Act probably will find themselves in a section
1 analysis in the future, where the role of Canada as a democratic society with
an obligation to protect rights and freedoms of both individuals and groups in
a meaningful way can be explored.

Comparison with the United States, both with respect to the scope of the
protection of freedom of religion and to the case law surrounding the get issue
in New York State, deserves mention here. Syrtash is right to suggest that courts
in Canada may draw valuable guidance from First Amendment jurisprudence
and from the approach of judges to the complicated situations that may arise
with respect to the get. Readers of his book, however, should be careful not to
assume that he offers complete coverage in this regard. Far from doing so, Syr-
tash promises comparison between the “get legislation” in New York State and
Canada, but fails to deliver.47 More seriously, he refers to U.S. cases on the get

the New York Get Statute” (1987) 96 Yale L.J. 1147; L.S. Kahan, “Jewish Divorce and Secular
Courts: The Promise of Avitzur” (1984) 73 Georgetown L.J 193; M. Feldman, “Jewish Women and
Secular Courts: Helping a Jewish Woman Obtain a Get” (1989-90) 5 Berkeley Women’s L.J. 139.

461[1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1.
47Syrtash, .supra note 2 at 176-78.

1993]

BOOK REVIEWS

in a hit-or-miss manner that is, at best, misleading, and, at worst, incorrect. The
most glaring example is his assertion that the “most dramatic development that
has helped to dispel many fears as to the constitutionality of a court’s interven-
tion to compel a husband to give a GET, was a decision of the United States
Supreme Court in Shragai.”’48 The “decision” to which he refers is a one sen-
tence dismissal of a petition for writ of certiorari given in response to a request
to stay an order of imprisonment by the Appellate Division of the Supreme
Court of New York.49 It would be highly questionable to rely on the dismissal
as evidence that the U.S. Supreme Court would uphold court interference with
the giving of a get as constitutionally valid under the First Amendment. In gen-
eral, readers would be well advised to start with the references’to American case
law and literature referred to by Dean Whyte in his memorandum and to carry
out up-to-date research on the get on their own.

With respect to the meaning of the free exercise and anti-establishment
clauses, U.S. jurisprudence and literature continues to evolve, and Syrtash could
be more honest about the fact that his book cannot possibly begin to cover the
debates over necessary accommodation as opposed to state establishment.” In
addition, and most significantly, the notion of importing doctrine from the
United States to Canada in the area of freedom of religion should be treated with
healthy suspicion. Not only is First Amendment doctrine of free exercise and
anti-establishment in a state of flux in the United States, but the differences
between the two countries, in terms of history and present political reality, are
especially marked in the area of religion and the state. There is no reason to sup-
pose that the approaches to constitutional rights of the individual and commu-
nity in that area would not also be strikingly different.

IV. Overlapping Issues and Jurisdictions –

the Interaction of Cultural

Communities and Multicultural Canada
In the foreword to his book, Syrtash asks to what extent Canadian multi-
culturalism finds its legal expression in the family law statutes and court deci-
sions of Canada. In conclusion, he recounts the developments that have been
discussed in the areas of religious and cultural identity of children, the format
.of decision-making in family matters, and divorce law reform: developments
that give some indication of what Syrtash calls a move in a “multicultural direc-
tion.” ‘ The open-ended conclusion that multicultural legal principles must be
respected and accommodated needs some concrete character if it is to be mean-
ingful. As is the case throughout his writing, Syrtash is stronger on specific,
practical explanation than on theoretical argument or discussion.

4 8Ibid. at 136-37.
49Shragai v. Shragai, 523 N.Y.S.2d 333 (App. Div. 1988), appeal dismissed 524 N.E.2d 147
(1988), reconsideration denied 528 N.E.2d 1227 (1988), cert. dismissed 489 U.S. 1073 (1989).
500n the current’status of the debate in the U.S., see e.g. M.W. McConnell, “The Origins and
Historical Understanding of Free Exercise of Religion” (1990) 103 Harv. L. Rev. 1409; M.W.
McConnell, “Accommodation of Religion: An Update and a Response to the Critics” (1992) 60
George Washington L. Rev. 685; I.C. Lupu, “Reconstructing the Establishment Clause : The Case
Against Discretionary Accommodation of Religion” (1991) 140 U. Pa. L. Rev. 555; I.C. Lupu,
“The Trouble with Accommodation” (1992) 60 Geo. Wash. L. Rev. 743.

5 1Syrtash, supra note 2 at 180.

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[Vol. 38

A comment should be made here, however, that even the strongpoints of
the book are adversely affected by a lack of careful editing. At times, sections
are cluttered and confusing such that the reader must wait until the conclusion
of each discussion for clear organization and analysis. Further, and definitely a
fault to be ascribed equally to the publisher, typographical and other errors in
the text are so prevalent that they occasionally make reading annoying and dif-
ficult. These fall along a spectrum of seriousness, but the misspelling of the past
Chief Justice of Canada as “Dixon J.” cannot be readily excused.”

In general, Syrtash’s careful summaries at the end of each of the major sec-
tions of the book, which encapsulate the present approach to an issue in Cana-
dian law, are extremely useful. Yet, a closer look at the way in which those sec-
tions relate to each other would yield a more substantial conclusion as to the
relationship between religion or culture and the state with respect to influence
and control over family matters. In the absence of a comprehensive tying
together of the different parts of Syrtash’s study by the author himself, I offer
several comments here on the intersection of the three major topics and the
themes, indicators and issues shared by them.

First, it is significant to note that not only do the areas that Syrtash has cho-
sen to address differ in substance, but they also offer different fora in which that
relationship is explored. Issues of religion and culture in child custody primarily
involve the courts; the procedures in making decisions regarding marriage,
divorce and children may be dictated by culturally specific tribunals; and leg-
islatures respond to a problem within a religious community with remedial leg-
islative reforms. Thus, courts, legislatures and forms of alternative dispute res-
olution coexist and cooperate in addressing conflicts between communal norms
and those of the state. They are the actors responsible for the three major
“encouraging developments”’53 that Syrtash pinpoints in his text –
respect for
aboriginal cultural concerns in child protection, remedial legislation for Jewish
spouses, and fitting together the different pieces of a Canadian child’s cultural
identity –

and it is important to accord them full recognition.

Second, in realizing that various mechanisms are at work in the evolution
of “freedom of religion,” “multiculturalism” and “aboriginal rights” in the con-
text of family law, we can also appreciate the’ fact that the impact of a state’s
legal action on the internal workings of a religious or cultural community has
its limits. That is, instead of continually asking about the legal permissibility of
state involvement or interference with religious or cultural norms, we can also
ask about the effectiveness of that involvement. This moves us into the sphere
of political action, whereby change in the civil law may be mirrored or sur-
passed by change within the community itself. As an example of such unrest
and change from within, we need look no further than Syrtash’s discussion of
the get. More attention should be given to the fact that Orthodox Jewish women
are not merely waiting for secular courts to grant them the relief they need and
deserve. Instead, they are undertaking political activism within their communi-

521bid. at 75.
531bid, at 179.

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CHRONIQUES BIBLIOGRAPHIQUES

ties and exerting pressure on not only their ex-husbands but also on the leaders
and rabbis who might in turn influence an eventual change in the Jewish norms
and practices themselves. The complex interaction between the legal system of
the state and that of a community within the state, in the form of carefully
researched and worded legislation, will not resolve the problem of the get for
Jewish women. It may provide a serious signal, however, in addition to the
women’s voices themselves, that substantive change is required in Jewish law.
Awareness that communities themselves have the final responsibility for change
in response to the needs and requirements of their members does not mean that
Canadian law should turn its attention elsewhere. As discussed earlier in the
context of alternative cultural dispute’resolution, family matters remain under
the umbrella of domestic civil law. As should be apparent by this point, the per-
spective of women with respect to each of the three substantive areas that Syr-
tash addresses provides a connecting theme in this respect. It is easy to suggest
that erosion of custody rights and respect for community standards will further
the principles and practices of multiculturalism in Canada. From the perspective
of women who stand to be silenced in the face of arguments on behalf of an
access father’s freedom of religion, or by the power-based infrastructure within
a specific community, it is crucial not to define multiculturalism in a way that
omits their concerns. Again, the inclusion of the discussion on the get and the
fact that Syrtash was one of the lawyers who worked on the get reforms should
indicate a willingness to incorporate gender equality into the remoulding of
state-community relations in the wake of the Charter.

‘Finally, it must be emphasized that the issues that Syrtash chooses for his
book are illustrative rather than comprehensive. Syrtash should make this fact
more clear in order to avoid a situation where readers might find his treatment
of religion and culture in Canadian family law somewhat unbalanced. If the
book were meant to treat all religious communities in Canada then it might be
fair criticism to say that Jewish law with respect to marriage and divorce
receives disproportionate attention here, with Catholicism, Anglicanism and
Islam receiving what amounts to passing mention, and other religions receiving
none. Of course, Syrtash does not intend to give a full picture of the legal and
normative structure of every religious and cultural community in Canada, and
the examination of Jewish law and the get issue provides an example rather than
one part of a complete survey.

Implicitly then, Syrtashs work invites further work to be done as we
develop a Canadian approach to the intersection of the state with the many com-
munities of which it is comprised. Just as Syrtash brings expertise in the area
of Jewish law, others will bring parallel knowledge of other normative orders
and interest in the issues that face other communities. Similarly, Syrtash is most
familiar with the law in Ontario, although he also emphasizes to some extent
Quebec and British Columbia. Lawyers and academics in other parts of the
country, especially those working in and with aboriginal communities, will
complement the ideas put forward in Syrtash’s book with their own experiences
and context. In addition, this is an area that invites comparative work, and Cana-
dian law would be well advised to consider the ways in which other countries,

250

McGILL LAW JOURNAL

[Vol. 38

including and beyond the United States, interact with religious and cultural sub-
communities on issues pertaining to the family.

The Charter’s protection of freedom of religion, multiculturalism and abo-
riginal rights may indeed change the landscape of Canadian family law in the
future. Syrtash succeeds in raising many of the crucial questions that must be
addressed as we think about the cultural identity of all Canadians, both children
and adults. We must ask how and under what circumstances constitutional law
will affect the scope and practice of family law; what individual freedom of reli-
gion includes and what limitations might be justifiable; and how the reality of
multiculturalism in Canada influences and is influenced by the constitutional
principle. Syrtash provides concrete situations in which the answers to those
questions will have a real impact. As we continue to investigate those situations
and others, lawyers and policy-makers will begin to construct the broad charac-
teristics of what may be a uniquely Canadian interweaving of cultural identity
and constitutional rights in the context of family law.

Richard A. Epstein, Forbidden Grounds: The Case Against Employment
Discrimination Laws. Cambridge: Harvard University Press, 1992. Pp. 530
[$39.951. Reviewed by Mark I. Schwartz*

Introduction

Over several decades, both the Canadian and the American governments
have enacted legislation prohibiting employers from discriminating against
employees or potential employees on the basis of various criteria. While the
majority of scholars as well as the public at large support this legislation, there
have been, in recent years, voices calling for the repeal of such legislation.’ The
grounds for such calls vary from the rights of the individual as they pertain to
contractual freedom, to the claim that while the goals of the Employment Dis-
crimination Laws (EDLs) are well intentioned, they lead to perverse secondary
long-run consequences which hurt society as a whole and specifically those
individuals they seek to protect and assist. One person calling for the repeal of
.EDLs is Richard Epstein.

In the above-captioned book Epstein2 develops a common law defense to
the regulation of labour markets and goes on to tell us how society would be
better off from a utilitarian point of view if EDLs were repealed. He traces the
long history of American law and jurisprudence prior to the Civil Rights Act of
1964,’ wherein racism was widespread. He reasons that the suffering was
mainly the result of public discrimination, not private discrimination, and cites
the decision of Plessy v. Ferguson4 as an example of public discrimination at
work. In an attempt to eliminate this suffering, the United States Congress pas-
sed the Civil Rights Act of 1964. However, according to Epstein, this Act is
fatally flawed in that, in addition to removing “Jim Crow” restrictions on the
freedom of contract, i.e., prohibiting public discrimination (which he lauds), it
prohibits private discrimination.

Attorney at the law firn of Phillips & Vineberg in Montreal, known internationally as Good-

man, Phillips & Vineberg.
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.J. 251
Mode de rdffrence: (1993) 38 R.D. McGill 251
‘See e.g. T. Sowell, Markets and Minorities (New York: Basic Books, 1981); R. Posner, Eco-

nomic Analysis of Law, 3d ed. (Chicago: Little, Brown, 1986).

2Richard A. Epstein is James Parker Hall Professor of Law at the University of Chicago. He is
also the editor of the Journal of Legal Studies. He is best known for his book Takings, Private
Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985), a trea-
tise on the meaning of the Fifth Amendment takings clause (“nor shall private property be taken
for public use, without just compensation”), and the misinterpretations given it by the Courts.

328 U.S.C. 1447 (1988).
4163 U.S. 537 (1896).

McGILL LAW JOURNAL

[Vol. 38

Epstein distinguishes public from private discrimination, public discrimi-
nation being the result of discriminatory acts (generally legislative) of local,
state or federal governments, and private discrimination being the result of dis-
criminatory acts (generally contractual) of individuals or corporations.’ Epstein
reasons that public discrimination cannot be tolerated while private discrimina-
tion should be. The reasons for this are found in the classical liberal belief that
power in the hands of the State inevitably causes oppression and suffering,
while this same power, once it is dispersed in the hands of citizens with dispar-
ate and divergent interests and needs (i.e. in a relatively free market) becomes
a key element of individual freedom.’

He notes that the prohibition of private discrimination has had the perverse
effect of permitting, inter alia, discrimination against whites and men (i.e.
reverse discrimination), and it has become permissible to charge firms with dis-
crimination on the basis of purely statistical surveys of ethnic imbalances within
their workforces.7 Epstein argues convincingly that while there are both forms
of private discrimination which people do not find offensive and forms which
people do find offensive, neither should be prohibited. His reasoning is that, in
both cases, private discrimination is often rational and that, in any event, the
consequences of using the blunt instrument of legislation to rectify disparate
and imperfect market situations are likely disastrous and far more severe than
private discrimination!

In elaborating on these arguments, Epstein takes aim at court decisions
which have been rendered since the passage of the Civil Rights Act of 1964,
including the 1971 Supreme Court decision in Griggs v. Duke Power Co.,9 and
the 1989 Supreme Court decision in Wards Cove Packing Co. v. Atonio,0 which
have expanded upon the Civil Rights Act of 1964 by developing the doctrine of
Disparate Impact. Disparate Impact is the doctrine which allows courts to infer
illegal discrimination without evidence of illegitimate motive and solely on the
basis of the disparate consequences of employers’ hiring procedures or tests.”

Epstein goes on to discuss non-race related labour market discrimination,
including discrimination on the basis of gender, age and disability. 2 He finds no
valid reason why legislation prohibiting these forms of discrimination should be
viewed any differently than legislation prohibiting discrimination on the basis
of race.

bridge: Harvard University Press, 1992) at 91-94.

5R.A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Cam-
6See for example J. Locke, Two Treatises of Government (London: Everyman Classics, 1924);
see also J.E.E. Dalberg-Acton, Baron Acton, Selected Writings of Lord Acton, vol. 1 (Indianapolis:
Liberty Classics, 1985); H. Spencer, The Man versus the State (Indianapolis: Liberty Classics,
1981).

7Epstein, supra note 5 at 77-78.
8 bid. at 266.
9401 U.S. 424 (1971) [hereinafter Griggs].
10490 U.S. 642 (1989).
“Epstein, supra note 5 at 160.
121bid. at 267-494.

1993]

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This review will seek to explain and critique Epstein’s reasons for calling
for the repeal of EDLs, viewed both from the utilitarian as well as the natural
rights viewpoint, with particular emphasis on race-related employment discrim-
ination.

I. The Utilitarian Approach Versus the Natural Rights Approach

Epstein commences his book with a section on the analytical foundations
of his theory. While his theory is based on a method of analysis (economic anal-
ysis) that has been with us for some time, he uses it to take aim at an area which
has heretofore been left relatively untouched: EDLs. Epstein’s whole approach
is based on the premise that the absence of EDLs produces greater social utility
(wealth) to more individuals (including traditionally oppressed groups) than the
‘existence of EDLs produces.13 This is a utilitarian opposition to EDLs. The util-
itarian opposition is to be contrasted with what I will refer to as the natural
rights opposition. The natural rights opposition to EDLs is based on the premise
that the absence of EDLs provides the greatest amount of liberty to all individ-
uals (including traditionally oppressed groups) and, as a result, EDLs should be
eliminated.

Epstein’s utilitarian approach to EDLs is centred on his belief that discrim-
ination is often rational (and therefore EDLs are not rational) both from the
point of view of the firm and the society as a whole. 4 This is the main thrust
of his book. Epstein reasons, for example, that there often exists a rational desire
on the part of employers to increase homogeneity within the workplace, i.e., a
deliberate desire to decrease the variance of opinion with regard to some key
issues. This is rational because when opinions within a group vary significantly,
it becomes difficult, if not impossible, to take decisions for the common good. 5
(Indeed, Canadians who have participated in the decade-long constitutional
debate can attest to the fact that too much variance of opinion can hinder prog-
ress and dispute resolution.) Epstein states the following:

Any social policy that requires that membership in a private association should be
randomly drawn from a subset of the larger whole is an invitation to trouble. Even
the ideal set of contractual terms can go only so far toward buffering the problems
and tensions of long-term legal relationships. In many senses the single most
important contractual decision is a business decision: the selection of contractual
partners. Choosing the right partners reduces the stresses on any set of legal rela-
tionships. Choosing the wrong partners exacerbates them. Governance costs are a
function of the level of variation within the fm.’n6

This, however, does not mean that the benefits of homogeneity are neces-
sarily universally true. According to Epstein, so long as they are partially true
they explain why some firms are organized along specialized lines while others

’31bid. at 242-66.
141bid. at 59. This view is distinctive to Epstein, as the other proponents of the repeal of EDLs
have based their claim exclusively on the belief that competitive markets render most discrimina-
tory behavior inefficient. See e.g. Sowell, supra note 1 at 50; Posner, supra note 1 at 615-25.

15Epstein, ibid. at 62-64.
16Ibid. at 64-65.

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[Vol. 38

are not.” Therefore, EDLs are very dangerous because they act as blunt instru-
ments which not only prevent the bigot from hiring individuals on the basis of
race, gender, etc., but also the non-bigot who rightfully and rationally views his
firm as being a more efficient entity when it is composed of a more homoge-
neous group.’ 8

Epstein’s point becomes even more evident when viewing the opposite sit-
uation. The case can be made for an employer having a rational desire to
decrease homogeneity in the workplace, i.e., increase the variance of opinion
with regard to some key issues, as for instance in situations where variance of
opinion would be sought because it was required to arrive at the solution to a
problem that could not easily be found. It is often claimed that important dis-
coveries are made by approaching a problem from a different angle. Having a
greater variety of opinions increases the likelihood of approaching the problem
from different angles, and therefore, increases the likelihood of solving the
problem as well as the speed with which it can be solved. This is a common and
accepted practice in business recruiting, as well as a basis for the consistently
broad interpretation given the First Amendment as it regards protected speech. 9
Can we justify allowing a decrease in homogeneity below the norm for cases
which so require such a decrease but not allowing an increase in homogeneity
above the norm when it is so required?

In addition, Epstein points out that EDLs are not rational because they del-
eteriously affect the minority groups they are put in place to assist.’ Epstein
claims that these effects are very similar to the effects of minimum wage laws.2″
These laws forbid employers from offering positions to prospective employees
below a certain rate and are an attempt to increase the standard of living of those
who would otherwise earn less than the minimum wage. It has been shown that
such laws create unemployment by forcing marginally profitable enterprises out
of business22 and by automating tasks in other enterprises.? Therefore, the very
workers which these laws were intended to assist are hurt. Incidentally, minority

171bid. at 68.
‘8lbid. at 78.
19The following remark was once made by Judge Learned Hand. The First Amendment, he said,
“presupposes that right conclusions are more likely to be gathered out of a multitude of tongues,
than through any kind of authoritarian selection. To many this is, and always will be folly; but we
have staked upon it our all” (NAACP v. Button, 371 U.S. 415 at 433 (1963)).

20Epstein, supra note 5 at 73, 261-64.
211bid. at 73-74, 243, 261-62.
22See e.g. M. Friedman, Free to Choose: A Personal Statement (NewYork: Harcourt Brace-
23This phenomenon has been referred to as the Caesar Chavez effect. Caesar Chavez made a
name for himself by mobilizing farm workers in California to form unions and to work for fairer
wages. While some farm workers benefited from his efforts by way of higher wages, many more
became unemployed and were replaced by automated harvesting devices. These devices were
introduced when farm workers priced themselves out of the market and machines became capable
of performing the same tasks at a lower cost to the farmer. For more on the Caesar Chavez effect,
see W. Block & M. Walker, Lexicon of Economic Thought (Vancouver: Fraser Institute, 1989) at
64-67.

Jovanovich, 1980) at 237-38.

The lesson to be learned is that while some people do benefit from such legislation, there are
hidden deleterious effects that call into question the social utility of the legislation in the first place.

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CHRONIQUES BIBLIOGRAPHIQUES

groups appear to be disproportionately affected by the hidden effects of mini-
mum wage laws since several minority groups are disproportionately repre-
sented amongst those who would earn less than the minimum wage.24

In similar fashion, according to Epstein, EDLs disproportionately reduce
employment opportunities for minorities in the long run in that they reduce the
number of firms that can enter the marketplace and also increase the likelihood
that marginally profitable firms will be forced out of business.’

Epstein further reasons that if employers rationally or even irrationally per-
ceive minority labour to be of lower value than non-minority labour, they will
inevitably seek ways to comply with the EDLs but evade their sting.26 One of
Epstein’s examples is locating a firm’s new plants and facilities in areas with
smaller percentages of minorities notwithstanding their less than perfect suit-
ability to the firm.

In essence, Epstein’s utilitarian opposition to EDLs can be summed up by
the following truism: in attempting to right a wrong, governments (and individ-
uals for that matter) all too often choose solutions by looking at the specific and
short-term consequences of their actions all the while neglecting the diffuse,
more serious and long-term consequences.27

It is unfortunate that Epstein relies almost exclusively on the utilitarian
rather than the natural rights approach in stating his opposition to EDLs, for
while his claims are well founded, they nevertheless lack the moral underpin-
nings,-which the natural rights approach provides, to justify the repeal of such
legislation. Demonstrating the economic inefficiency of legislation is often
viewed as an insufficient reason to repeal it. What is generally required in addi-
tion to, or instead of, this is a belief within the population at large that this leg-
islation, or the concept upon which it is based, is somehow wrong or immoral.
The natural rights opposition to EDLs provides this foundation by expounding
on the belief that the freedom of contract is merely a subset of individual liberty,
and that individual liberty must be promoted over and above all other interests.
A belief in the primacy of individual liberty means that it is wrong for the State
to use its coercive apparatus for the purpose of getting some citizens to aid oth-
ers, or to prohibit or mandate the activities of people for their own good or pro-
tection.” Indeed, more than simply being wrong such State interference is
viewed by natural rights proponents as a step taken towards a society where
individuals have lost their freedom because the State uses this coercive appara-
tus in overwhelming fashion in every aspect of human life.29

It is for instance the natural rights approach which has triumphed in the
area of freedom of speech.” It is commonly accepted in North America today

24Epstein, supra note 5 at 261.
25Ibid. at 73, 181.
261bid. at 262-63.
27See e.g. H. Hazlitt, Economics in One Lesson (New Rochelle, N.Y.: Arlington House, 1979).
28R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at ix.
29Examples include all communist countries and the socialist democracy of Sweden.
30Epstein, supra note 5 at 149; B.H. Siegan, Economic Liberties and the Constitution (Chicago:

University of Chicago Press, 1980) at 248-64.

McGILL LAW JOURNAL

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(though more so in the United States than in Canada) that the word “speech”
should be interpreted broadly” and that restrictions on speech should be few
because all forms of censorship are dangerous (and immoral) in that they allow
the state to use its coercive apparatus to control the dissemination of informa-
tion. 2

Is there any reason why the freedom of contract (EDLs are a restriction on
the freedom of contract) should be viewed more restrictively from a natural
rights point of view than freedom of speech?33 Indeed, there is some justification
for claiming that a better case can be made for regulating speech than almost
any other freedom, including the freedom of contract, speech being potentially
the most dangerous of all freedoms. Bernard H. Siegan, Professor of law at the
University of San Diego School of Law states that:

Even assuming that hazards are of the magnitude alleged in the calls for regula-
tion, they cannot pose so great a risk to the public welfare as misleading, distorted
or false information. Expression may be the most dangerous of all freedoms. It can
lead to war, depression, tyranny, terrorism, revolution, and insurrection, since the
final decision on these and numerous other critical issues rests with a public
dependant on news media for accurate information.34
In summary, arguably, a very rational (some might say the most rational)
reason for opposing EDLs is their anti-libertarian nature regardless of their
social utility (utilitarian value). They force associations amongst individuals
who would not otherwise associate, and this goes contrary to the natural rights
view of individual liberty as being the sole and ultimate good.

II. Disparate Treatment, Disparate Impact and the Burden of Proof

Apart from their anti-utilitarian and anti-libertarian nature, another argu-
ment for the repeal of EDLs is that they inevitably lead to the shifting of the bur-
den of proof from the employee to the employer. This shift stems from the pri-
mordial belief that all forms of discrimination are wrong, and therefore, that all
means necessary should be taken to root out discrimination. The absurdity of
this shift in the burden of proof is demonstrated by Epstein’s review of recent
caselaw and the doctrine of Disparate Impact which has emanated therefrom.35

Disparate Treatment is the doctrine which allows courts to infer illegal dis-
crimination on the basis of an employer’s illegitimate motives.36 According to

31See R.A.V. v. City of St-Paul, Minnesota, 60 U.S.L.W. 4667 (1992), a recent unanimous
Supreme Court decision, which held to be unconstitutional an ordinance which prohibited the dis-
play of symbols which one knew or had reason to know aroused anger, alarm or resentment in oth-
ers on the basis of race, colour, creed, religion or gender.
32Siegan, supra note 30 at 249. See also supra note 19.
33See for example Posner, supra note 1 at 627-38; A. Scalia, “Economic Affairs as Human
34Siegan, supra note 30 at 263.
35Epstein, supra note 5 at 159-241. An even more absurd consequence of EDLs is “race nor-
ming.” See ibid. at 238-41. Race norming is the practice, endorsed by the National Research Coun-
cil, whereby the score of an individual on a test is reported only as a percentile relative to that indi-
vidual’s own race, not the tested population as a whole.

Affairs” (1985) 4:3 Cato Journal 703.

361bid. at 160.

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this doctrine the complainant carries the initial burden of establishing a prima
facie case of racial discrimination.37 Once this is accomplished, the burden shifts
to the employer to show a non-discriminatory reason for the employee’s rejec-
tion. The Civil Rights Act of 1964 is based on this doctrine.38

However, as Epstein relates, recent court decisions have developed a new
doctrine: the doctrine of Disparate Impact.39 Disparate Impact is the doctrine
which allows courts to infer illegal discrimination solely on the basis of the dis-
parate consequences of an employer’s hiring procedures or tests.40 The water-
shed case in this regard is the Griggs decision.4 According to this doctrine, the
complainant carries the burden of establishing primafacie that the selection rate
for the race, ethnic group or sex in question is less than the group with the high-
est rate.42 Once this is accomplished, the burden shifts to the employer to show
business necessity;43 in other words, the employer must show that the practice
which leads to the differing selection rate is essential to the firm’s survival.

In the more recent decision of Wards Cove Packing Co. v. Atonio,44 the
oppressive burden of business necessity was replaced by a somewhat less
oppressive two-step process:45 the complainant must show that the legitimate
employment goals of the employei do not justify the practices that lead to the
differing selection rate; if the employer prevails on this point, the complainant
must then show the availability of alternate practices, with less racial impact, to
achieve the same business ends.

Congress became frightened by this change of course, and sought to pass
the Civil Rights Act of 1990, succeeding with the Civil Rights Act of 1991.46
Though this legislation was promoted as a restoration of the principles enunci-
ated in the Griggs decision, it in fact imposes more stringent standards of lia-
bility on the employer than were imposed pursuant to Griggs, especially as they
relate to the scope of basic liability and the damages for which the employer
would be liable.47

Although Epstein’s review of recent court decisions is exhaustive and he
provides overwhelming reasons as to why the doctrines of Disparate Treatment
and Disparate Impact should be discarded, he does not sufficiently explain the
historical foundations for placing the burden of proof on the accuser rather than
on the accused. Indeed, vis-A-vis EDLs, placing the burden of proof on the
employer after having established no more than a statistical discrepancy in

37 Ibid. at 167.
3 8Supra note 3. See Epstein, ibid. at 186-92, 197.
39Epstein, ibid. at 182-241, 252.
4Ibid. at 160.
41Supra note 9. See also Epstein, ibid. at 207.
42Epstein, ibid. Generally, the rate must be less than 4/5 the rate of the group with the highest

rate.

4 31bid. at 212-22.
44Supra note 10.
45Epstein, supra note 5 at 233-36.
46Pub. L. No. 102-166, 105 Stat. 1071.
47Epstein, supra note 5 at 234-36.

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selection rates reverses centuries of the common law regarding the presumption
of innocence. This presumption is based on well established principles of equity
and justice, as well as on more recent, and equally well founded, studies of cost-
benefit analysis.4″

It is because our legal system is premised on the belief that it is better to
err on the side of innocence (or lack of civil responsibility in civil matters) than
on the side of guilt (or civil responsibility) that the burden of proof has tradi-
tionally been on the accuser. Maintaining the burden of proof on the accuser is,
arguably, more sound because it forces the individual who accuses the employer
of wrongdoing to demonstrate his basis for this accusation. Reversing the bur-
den of proof significantly decreases the cost of making an accusation and
increases the cost of defending against it. Inevitably this shift leads to an expo-
nential increase in such accusations and a corresponding increase in convic-
tions. The ultimate result is a dramatic increase in the number of convictions of
employers who in fact did not violate the law, this mainly because of the pro-
hibitive cost associated with overcoming the burden of proof.

Indeed, if there are to be EDLs, it is arguable that they should require the
demonstration by the complainant of an intent on the part of the employer to
discriminate. After all, a selection rate of a minority group which is significantly
less than the group with the highest rate may be caused by one of several non-
discriminatory factors. These may include: few minorities with the requisite
training or aptitude; few minorities residing in the vicinity of the employer; or
few minorities interested in that form of work.49
m1. The Constitution, Positive Rights and EDLs

America’s recent advocacy” of EDLs is attributable to the period prior to
the 1960s.5 It was during this period that local and state governments, with the
assistance of the judiciary, enacted racial restrictions on practically all private
behaviour, including voting, marriage, economic arrangements and schooling.52
These restrictions, dubbed “Jim Crow,” had the effect of prohibiting a whole
range of private consensual arrangements between American citizens, and
resulted in the segregation of the races. By way of example, Epstein discusses
the Supreme Court decision of Plessy v. Ferguson.53 The State of Louisiana
enacted legislation in 1890 which required all railway companies carrying pas-
sengers to provide equal but separate accommodations for its black and white
customers. This legislation was challenged under the equal protection clause of
the Constitution on the ground that it infringed the rights of black citizens to
equal protection under the law, which it clearly does. However, the Supreme

48Posner, supra note I at 520-21.
491bid. at 622.
5GThat this advocacy has not ceased is evidenced by two recent pieces of legislation: i) the Amer-
icans with Disabilities Act of 1990, 42 U.S.C.S. 12101 (Law. Co-op. Supp. 1992); ii) the Civil
Rights Act of 1991, supra note 46.
51Epstein, supra note 5 at 91-144.
521bid. at 91-115.
53lbid. at 99-115; Plessy v. Ferguson, supra note 4.

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CHRONIQUES BIBLIOGRAPHIQUES

Court turned justice on its head by interpreting the statute as one which granted
freedoms, in this case the right to be free from being forced to commingle with
individuals of the opposite race, when its true purpose and effect was the pre-
vention of contractual freedom between the railroad company and its customers,
both black and white.54

While these prohibitions were gradually removed as a result of the
Supreme Court decision in Brown v. Board of Education of Topeka,55 Epstein
claims that the past spectre of discrimination and segregation has led to a situ-
ation where all forms of employee-related discrimination are dismissed as nec-
essarily invidious and to be prohibited. The pre-eminent legislation in this
regard is the Civil Rights Act of 1964. Epstein notes that:

The experience of Jim Crow was so powerful that it pushed to one side any con-
ceptual understanding of discrimination and its consequences in private markets.
Economic analysis, game theory, and the like formed no part of the discourse. The
question of civil rights was perceived first and foremost as a moral issue, as a
question of simple justice, which admitted only one categorical answer: any form
of discrimination on grounds of race is morally wrong and ought to be illegal. It
was the practice of discrimination that mattered. What was wholly irrelevant was
its source, public or private.56
In addition to eliminating Jim Crow restrictions on the freedom of contract
(which Epstein rightfully lauds),57 the Civil Rights Act of 1964 prohibits
employers from refusing to hire or from discharging individuals on the basis of
their race, colour, religion, sex or national origin. While Epstein disputes the
need for such legislation as it regards private discrimination, he fails to suffi-
ciently emphasize that there appears to be little constitutional basis for the Civil
Rights Act of 1964 in that regard.
Indeed, much has been written about the
Constitution being based principally upon negative rather than positive rights.59
Negative rights are rights which accrue to the benefit of every individual under
the jurisdiction of the Constitution, and generally, are viewed as negative in that
vis-a-vis any one individual, all others must refrain from doing something.
Examples of these rights are freedom of association, freedom of speech, free-
dom of the press, the right to one’s person and to one’s property and the freedom
of contract.6′ On the other hand, positive rights are viewed as positive in that
vis-A-vis any one individual, all/some others must act in some positive fashion
towards that individual. Often the positive contribution is monetary in nature.
Examples of these rights are the right to a decent wage, the right to a job, the
right to three meals a day and a roof over one’s head.6′ Therefore, it is apparent

54Epstein, ibid. at 107.
55347 U.S. 483 (1954).
56Epstein, supra note 5 at 93.
571bid. at 248, 251-52.
58fbid. at 130-43.
59See e.g. F.A. Hayek, Law, Legislation and Liberty: A New Statement of Liberal Principles of
Justice and Political Economy, vol. 2, The Mirage of Social Justice (Chicago: University of Chi-
cago Press, 1976) at 101-06; Block & Walker, supra note 23 at 114-15, 289-92.

the right to demand that all others refrain from interfering with their contractual relationship.

6For example, the freedom of contract is a negative tight in that the contracting parties have
61Hayek, supra note 59 at 103; Block & Walker, supra note 23 at 114-15, 289-92.

McGILL LAW JOURNAL

[Vol. 38

that positive and negative rights conflict and, arguably, cannot coexist if they are
to be given full meaning.

The Civil Rights Act of 1964 is clearly a form of “positive rights” based
legislation in that it forces employers into some contractual relations which they
would otherwise resist. It is, regardless of one’s view of this legislation, in the
true sense, a restriction on an individual’s contractual freedom.

It is only relatively recently in constitutional history that the courts have
held with regularity that positive rights are founded in the Constitution (thereby
undermining the existence of certain negative rights), and there has been much
in the way of criticism of this jurisprudence.62 Siegan asserts that:

The province of the judiciary is not to undertake wealth redistribution or to make
some people wealthier than others; its role is limited to ensuring that when the leg-
islature engages in such tasks, it does not do so oppressively at the expense of indi-
vidual liberties. The Framers did not desire, and the Constitution does not warrant,
that the Supreme Court legislate. The Court has a role in progress, equality, and
redistribution, but it is one that is tied to individual achievement, initiative, and
creativity. As the protector of individual liberties, the Court assures society that
private people, as the major source of progress, will continue, individually or in
concert with others, to apply themselves to undertakings of their own choice. The
greatest threat to progress and well-being comes when legislators eliminate
the opportunity for individual advancement. 63

Indeed, in the American context, much of the legislation generally affirm-
ing positive rights and specifically restricting the negative right of the freedom
of contract may, arguably, violate the Constitution. In particular, the provisions
which may be violated are the contracts clause (Section 10 of Article I), the due
process clauses (Amendment V and Amendment XIV), the takings clause
(Amendment V) and the equal protection clause (Amendment XIV).

Section 10 of Article I of the Constitution read,

in part, as follows:

Section 10.

(States prohibited from the exercise of certain powers.)
1. No State shall … pass any … law impairing the obligation of con-

tracts …

While these provisions are not viewed by today’s Supreme Court as deny-
ing government the right to legislate positive rights, such as EDLs, previous
Supreme Court decisions and strong dissenting opinions have held otherwise.’
In fact, until the mid nineteen-thirties, when the first of eight new Supreme
Court Justices’ was named to the bench by then President Franklin D. Roose-
velt with the explicit intention of facilitating the implementation of many con-
stitutionally questionable aspects of his New Deal, the United States’ Supreme
Court had repeatedly declared unconstitutional marny “positive rights” based

62See for example Siegan, supra note 30 at 304-17; Posner, supra note 1 at 589-98.
63Siegan, ibid. at 315.
64See for example the dissenting opinion of Chief Justice Marshall in Ogden v. Saunders, 25
65These were: Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, Frank Murphy,

U.S. 213 (1827).

James Bymes, Robert Jackson and Wiley Rutledge.

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BOOK REVIEWS

laws, such as minimum wage laws,66 maximum hour laws,67 laws creating state
monopolies or prohibiting market entry6″ and laws prohibiting “yellow dog”
contracts,69 on the basis that these laws violated the above-mentioned constitu-
tional provisions protecting the freedom of contract.” It was only in specific
instances, when the State could demonstrate clear and convincing reasons for
curtailing the freedom of contract, that this sort of legislation was upheld.7′ In
the fifty years since this long line of decisions was overturned by the New Deal
Court few have dared to question the validity of this Court’s decisions, with the
result that more and more “positive rights” based laws have been declared con-
stitutional, all on the basis of this Court’s Escherian architecture.

Recently, however, some legal scholars have called for a review of these
New Deal Court decisions and hence a revival of the contracts clause and
related constitutional provisions.72 And in a recent decision, in an eloquent obi-
ter dictum, Judges Posner and Easterbrook of the Seventh Circuit Court of
Appeals, writing for the majority, derided the caselaw which has denuded the
contracts clause of any utility.7″ They claim that a correct reading of the Con-
stitution necessitates interpreting the freedom of speecli and freedom of contract
clauses equally broadly.

The fact that the above-mentioned constitutional provisions are no longer
interpreted as prohibiting much of the legislation which affirms positive rights,
such as EDLs, is indicative of a general splintering-by the judiciary of consti-
tutional rights since the commencement of the New Deal Court. This splintering
has led to the formation of two subsets of rights which are treated differently by
the judiciary: economic rights (e.g., the freedom of contract pursuant to the con-
tracts clause and related constitutional provisions) and non-economic rights (in

6See e.g. Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Murphy v. Sardell (October 19,
1925) District of Arizona 18 (U.S.S.C.); Donham v. West Nelson Manufacturing Co. (January 17,
1927) Eastern District of Arkansas 118 (U.S.S.C.); Morehead v. New York ex rel. Tipaldo, 298 U.S.
587 (1936).

67See e.g. Lochner v. New York, 198 U.S. 45 (1905).
68See e.g. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932); Allgeyer v. Louisiana, 165 U.S.
578 (1897). However, see contra the Slaughter House Cases: Butcher’s Benevolent Association of
New Orleans v. Crescent City Live-Stock Landing and Slaughter- House Company, 83 U.S. (16
Wall.) 36 (1872) where the U.S. Supreme Court upheld, by a 5-4 decision, a decision by the Lou-
isiana legislature to grant an exclusive privilege to a private corporation to operate the slaughter-
house business in the City of New Orleans.
69See e.g. Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915).
7 0Contra see Nebbia v. New York, 291 U.S. 502 (1934), where the U.S. Supreme Court upheld,
by a 5-4 decision, a state law which regulated the retail price of milk by making it a crime to sell
a quart of milk for less than nine cents.

71See Allgeyer v. Louisiana, supra note 68 and Lochner v. New York, supra note 67.
72These include Antonin Scalia, Richard Posner, Robert Bork, Alex Kozinski and Frank Easter-
brook. See e.g. D. Bernstein, “Equal Protection for Economic Liberty: Is the Court Ready?” (Cato
Institute, Policy Analysis No. 181, 5 October 1992) at 14-15. See also Chicago Bd. of Realtors v.
City of Chicago, 819 F2d 732 (1987); R. Bork, “The Constitution, Original Intent, and Economic
Rights” (1985) 23 San Diego L. Rev. 829; A. Scalia, “Originalism: The Lesser Evil” (1989) 57
University of Cincinnati L. Rev. 856; A. Kozinski, “The Judiciary and the Constitution” in J.A.
Dorm & H.G. Manne, eds., Economic Liberties and the Judiciary (Virginia: George Mason Univer-
sity Press, 1987) xi.

7 3Chicago Bd. of Realtors v. City of Chicago, ibid. at 744.

REVUE DE DROIT DE McGILL

[Vol. 38

other words, civil rights, e.g., freedom of speech). Economic rights are viewed
as less important than non-economic rights, and as a result, have been less strin-
gently protected by the courts. This schism exists despite the fact that there
appears to be no constitutional basis whatsoever for their differential treat-
ment.74 Indeed, the Founders’ views on the equal importance of economic and
non-economic rights, as expressed in the Constitution, is supported by the pre-
vailing view in this day and age that economic freedom is necessary for the pro-
motion of political freedom.75

Epstein has once again made a very, important contribution in a controver-
sial area of the law. While his approach is strictly utilitarian, and while he pro-
vides an insufficient discussion of the historical origins of the placing of the bur-
den of proof on the accuser rather than on the accused, as well as the
constitutional underpinnings, if any, of EDLs, his book breaks much new
ground in the area of EDLs, especially as it pertains to their potentially perni-
cious effects and to the often rational way in which employers act when they
discriminate. Finally, his review of the related caselaw from the turn of the cen-
tury onwards offers a rare and detailed analysis of an extremely important era
in American jurisprudential history.

74A. Kozinski, supra note 72 at xi-xviii; A. Scalia, supra note 33 at 703-09.
75M. Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962) at 9.