Legal environment Essay

Argument in Support of Fred

            The Canadian Charter of Rights and freedoms provide that everyone has the following freedoms; religion and conscience, opinion, belief, thought, and expression.  According to Jerom (2005), this freedom is extended to include freedom through media communication and freedom of press, the freedom also extends to peaceful assembly and peaceful association.  From this provisions, it has been established that one or more of these freedoms can have substantial effects on all people in Canada.  Every individual in Canada has a right to exercise their freedom as long such freedom is reasonable and demonstrably justifiable.

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            From the provisions above, Fred has a right to bring a legal action against Azmil under the Canadian Charter of Rights and freedoms.  By insisting that male teachers should not be present in grade 9 class while she is teaching, Azmil is denying male teachers such a Fred their freedom for the sake of her religious practices.  On the other hand, teaching while wearing the veil may be destructive to the students, whose rights may be limited with regard to education.  Wearing the veil may be destructive to students who will not be able to view the teacher well, or the veil may even destruct communication, hence denial of freedom to full education.

            In deciding this case, the court has to comprehensively consider the provisions of the Act, precedents and look at the present case so as to arrive at a conclusion.  It is clearly provided in the Canadian Charter of Rights and freedoms that, the rights and freedoms guaranteed therein are set out only to such reasonable limits provided by the law as can be justified and demonstrated in a democratic and free society.  In most of the cases decided in the Supreme Court of Canada on fundamental freedoms, it has often been established that the legislations in question were found to infringe the provisions of the Charter of rights, but section 1 has saved the situation on grounds that it is a justified and reasonable limit.

              The Supreme Court of Canada laid down a test to decide when the violation of a Charter right could be demonstrably be justified to a reasonable limit.  This was decided in the case of R. v. Oakes, in 1986 .  The test in Oakes case has been applicable up to date.  The first criterion is that the law which is intended to infringe a Charter right must show the clear purpose of infringement which must be a sufficiently clear objective to justify the limitation of a Charter of Right.  The purpose of such law should be so important to warrant overriding a constitutionally protected freedom or right (Shaskolsky, 2004).

            Secondly, even after the establishment of an important objective, the proportionality test must be carried out to prove that the means chosen are demonstrably justified and reasonable.  This involves; establishing that the law is rationally connected to the objective, the law must not impair the right no more than it is required to accomplish that objective, the law is not supposed to have a disproportionate critical effect on the infringed right.

            In the case of Dagenais, the issue involved partial broadcasting ban on the the boys of St. Vincent with regard to CBC production.  Speaking for the majority, Justice Lamer made a clarification on dis-proportionality severe effects.  The court recognized that it is important to measure the actual salutary effects of the impugned legislation and its deleterious effects, instead of only considering the proportionality of the objective.

            In considering the above provisions, the need to protect children in the education system and the rights of other male teachers outweigh the need for Azmil to continue wearing the veil.  Azmil’sAzmil’s rights and freedoms under the Act may be infringed by the need to protect the education of children and male teachers.  It should be considered if the school has a legislation to this effect.  If it is shown that such infringement has a sufficiently clear objective to justify the limitation of a Charter of Right then it may be allowed.

Argument in Support of Azmil

            Section 2 (a) provides for freedom of conscience and religion.  The constitution did not have any direct provision protecting religion before the Charter came into being.  However, limited protection was allowed to denominational schools under section 93 of the 1867 Act.  There has been an argument that protection of conscience is likely to lead to civil disobedience.  The Supreme Court of Canada in the case of R. V. Big Drug Mart held that the freedom of conscience provided for under a Charter of right relates to freedom of conscience in matters directly related to religion.  The set paragraph in the Charter of rights and freedoms provide that protection is accorded to all state imposed burdens in the exercise of religious beliefs, whether indirect or direct, unintentional or intentional, unforeseeable or foreseeable, as long as they are not seen as merely insubstantial or trivial (Cheffin, 2006).

            Azmil can therefore rely on the provisions of section 2 (a) of the Charter to argue that she should be allowed to preserve her religious practices even in the education sector.  Azmil has to prove that the practice of wearing the veil is not insubstantial or trivial, and that she should be allowed a teaching environment where she can practice this.

Reasons for Arriving at the Decision

            With a complaint from both parties, Azmil and Fred requiring that they need their freedoms and rights.  It is important to consider the grounds of arguments for both sides, there will be need to look at the reasons given for the infringement of rights and the possible consequences of such infringement.  The need which outweighs the other will be give priority.

            The provisions of section 2 (a) clearly apply to education issues.  The Supreme Court in Ontario in the case of Zylbergerg v. Sundbury Board of Education  made a determination that a law which compels schools in the public sector to hold prayer sections did violate the a Charter’s freedom of conscience and religion.  It was held that the regulation which had been passed by the Ontario’s Education Act violated the Carter, as it made a mandatory requirement for students to read specific scriptures and other suitable prayers.  In its ruling, the court stated that a student who allowed influence from other students nullify the protection provided under the Act.  In 1989, the Supreme Court in British Columbia used the same reasoning while dealing with a school prayer legislation (Shaskolsky, 2004).

            The Supreme Court of Canada in 1986 dismissed an appeal made by Jones of Calgary.  The appellant argued that the provisions of the Alberta School Act were a violation of the charter of rights.  These provisions prevented parents from educating their children from home due to religious reasons.  The appellant argued that rights of conscience and religion were violated.  The court however found that The compelling of children to attend school outweighs the Charter rights.

            Richardson (2004) asserts that in making such a decision, the Supreme court of Canada has established that any law limiting the freedoms and rights provided in the Charter must be reasonable, very important so as to override the provisions of a Charter right, and must not cause adverse effects by violating a Charter right.  In this case, there is need to consider the religious needs of Azmil, the needs of male teachers and those of students.  It is clear that the need to protect the freedom of students in education, and need to protect male teachers outweigh the need for Azmil to keep wearing the veil.  Azmil should therefore  to forfeit her rights on these basis.

References

Cheffin, R. (2006). The Revised Canadian Constitution: Politics as Law. Michigan: University of Michigan Press.

Jerom, B. (2005). A Standard for Justice: A Critical Commentary on the Proposed Bill of          Rights for New Zealand: Oxford: Oxford University Press.

Richardson, J. (2004). Regulating Religion: Case Studies from Around the Globe. New York:   Published by Springer.

Shaskolsky, L. (2004). The Future of Tradition: Customary Law, Common Law, and Legal       Pluralism. New York: Published by Routledge

 

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