A Logical Flaw in the Supreme Court of Canada’s Analysis of Positive Entitlements to Expressive Freedom
In Baier v Alberta, 2007 SCC 31 [Baier], Justice Rothstein of the Supreme Court of Canada articulated a test for whether an underinclusive statutory platform of expression infringes section 2(b) of the Canadian Charter of Rights and Freedoms, and thus whether a claimant has a positive entitlement to access that platform. He adopted the test from Dunmore v Ontario (Attorney General), 2001 SCC 94 [Dunmore]. Dunmore decided that Ontario had a positive obligation to include agricultural workers under provincial labour relations legislation because excluding the workers infringed their section 2(d) freedom of association.
The Baier test requires a claimant who asserts a positive entitlement to expressive freedom to satisfy three criteria:
(1) The underinclusion claim must be grounded in a fundamental Charter freedom rather than access to a particular statutory regime.
(2) Exclusion from a statutory regime must substantially interfere with activity protected under section 2 of the Charter. The exercise of such activity need not be impossible, but the claimant must seek more than a particular channel for exercising it.
(3) The state must be accountable for the inability to exercise the fundamental freedom; underinclusion must substantially orchestrate, encourage, or sustain the violation of fundamental freedoms.
Baier narrowed the scope of expressive freedom. Justice Fish noted in dissent that the Court has historically interpreted freedom of expression broadly and associational freedom narrowly (paras 99-100). It is therefore ironic that the Court cross-fertilized the broad section 2(b) Charter entitlement using the narrower section 2(d) entitlement.
In this comment, I argue that the Baier test harbours an inherent logical flaw. This flaw was overlooked in Dunmore because the Court fixed on the labour relations context out of which Dunmore arose. In Baier, Alberta legislation regulating provincial school board trustee elections prohibited the claimants, who were teachers, from being trustees. The Court denied the teachers’ claim that the legislation was an underinclusive expressive platform that contravened section 2(b) of the Charter. I suggest that the Baier test’s flaw may not have restricted freedom of expression in Baier if the Court took into account the context out of which Baier arose, as it did in Dunmore.
The Baier test’s flaw concerns its first two criteria. A positive claim for inclusion in a statutory platform to protect expressive freedom satisfies the first criterion only if it is pitched in general terms. Only general claims are grounded in fundamental freedoms that antecede particular statutory regimes. Specific claims resemble claims for access to a particular statutory regime. When applying the first criterion in Baier, Justice Rothstein construed the teachers’ claim specifically, i.e., as a claim to become school board trustees to express themselves. He held that the claim was for access to a particular statutory regime (paras 31-33). In dissent, Justice Fish construed the claim generally, i.e., as a claim to be able to express oneself in matters related to education. He held that it was grounded in a fundamental, pre-statutory freedom (para 105).
Now, a positive entitlement claim satisfies the second criterion of the Baier test only if it is pitched in specific terms. Only expressive activity that is described specifically is interfered with by underinclusive legislation. It is difficult to exercise specific expressive activities outside of the channel offered by a particular statutory platform. General expressive activities are exercisable in forums other than particular statutory channels. A claim for statutory protection of a general expressive activity therefore resembles a search for a particular channel to exercise that activity. When applying the second criterion in Baier, Justice Rothstein described the teachers’ claim generally, i.e., as a claim to be able express oneself in educational matters. The impugned underinclusive statute did not substantially interfere with this expressive activity. The teachers could express themselves in educational matters outside the statutory platform (para 40). Statutory trusteeship was a particular channel for such expression.
It is hard to see how a claimant could satisfy both of the Baier test’s first two criteria. If a claimant asserting a positive entitlement to inclusion in a statutory platform to protect her expressive freedom pitches her claim in specific terms, she cannot satisfy the first criterion. If she pitches her claim in general terms, she cannot satisfy the second criterion. Justice Rothstein’s application of the criteria in Baier illustrates the test’s inherent logical flaw.
The Dunmore agricultural workers succeeded because, by focusing on the case’s labour relations context, the Court overlooked the Baier test’s flaw. The test was specially tailored to agricultural workers who could not associate due to underinclusive labour relations legislation. Justice Bastarache asked “whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations.” (Dunmore, para 20).
In Dunmore, there was no difference between exercising the fundamental freedom of association and accessing labour relations legislation. The agricultural workers pitched their claim for inclusion in the legislation in general terms, i.e., as an ability to associate through unionization (para 12). Justice Bastarache held that it is impossible for employees to associate without protective labour relations legislation, which “does not simply enhance, but instantiates, the freedom to organize” (para 36). Because the workers’ fundamental freedom claim was equivalent to a claim for access to a particular statutory regime, they would have satisfied the first criterion of the Baier test even if they pitched their claim in specific terms.
The underinclusive labour relations legislation in Dunmore substantially interfered with agricultural workers’ associational activity because it was impossible for agricultural workers to unionize outside the particular channel offered by such legislation. Justice Bastarache held that, outside the underinclusive legislation, the agricultural workers were exposed to common law inhibitions on and employer resistance to unionization. They were also “poorly paid, [faced] difficult working conditions, [had] low levels of skill and education, low status and limited employment mobility” (para 31). The Dunmore claimants therefore satisfied the second criterion of the Baier test even though they pitched their claim in general terms and sought a particular channel for associating through unionization.
Despite the generality of their claim, labour relations legislation was not one of several available channels for unionization, but the only channel. The Baier test was not tailored to teachers who could not express themselves on matters related to education as school board trustees due to underinclusive electoral legislation. It was tailored to Dunmore’s unique labour relations context. Because that context obscured the distinctions between the general and specific levels at which positive claims for statutory protection of a fundamental freedom might be pitched, it obscured the flaw in the Baier test.
The restriction on the section 2(b) entitlement produced by the Baier test’s flaw could have been mitigated if, as in Dunmore, the Court focused on the context out of which Baier arose.
The Court could have construed the teachers’ assertion of a positive entitlement to access Alberta’s school board trustee elections legislation in general terms, i.e., as a claim to be able to express one’s views on matters of education. The claim would satisfy the first criterion of the Baier test. In the context of school board trusteeship elections, the claim to express views on educational matters is grounded in a fundamental, pre-statutory freedom linked to the political value of representative democracy in local governance (Baier, paras 110-11). It is not a specific claim for access to a particular statutory regime.
Under the second criterion of the Baier test, the Court could have also understood the teachers’ freedom to express views on education contextually. School board trusteeship offers a “uniquely effective means of expressing one’s views on education policy” (para 107). Individuals cannot express their educational views outside a statutory platform in which they could serve as trustees. The alternatives, such as lobbying existing trustees and writing letters to newspapers, are not effective. The views of those excluded from the platform are drowned out by the views of those included in the platform. As Justice Fish wrote in dissent, trusteeship is a “qualitatively different means of expression than simply shouting from the sidelines” (para 108).
By attending to context in Baier, the Court could have recognized that exercising the fundamental freedom to express views on education is an activity for which access to a statutory platform governing school board trusteeship elections is not merely one of several available channels but the only channel. The teachers’ exclusion from this platform would then have substantially interfered with their fundamental freedom of expression. If they satisfied the Baier test’s third criterion, they would have had a positive entitlement to access Alberta’s school board trusteeship election legislation.