Supreme Court Judgments

                                                 SUPREME COURT OF CANADA

Between:

Ronald David Baier, George Ollenberger,

Liam McNiff, Evelyn Alexandra Keith and

Alberta Teachers’ Association

Appellants

and

Her Majesty the Queen in Right of Alberta

Respondent

‑ and ‑

Attorney General of Ontario, Attorney General of New Brunswick,

Attorney General of British Columbia, Attorney General of Prince Edward Island,

Canadian Teachers’ Federation, Alberta Federation of Labour and

Public School Boards’ Association of Alberta

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

baier v. alberta

Ronald David Baier, George Ollenberger,

Liam McNiff, Evelyn Alexandra Keith and

Alberta Teachers’ Association                                                                       Appellants

v.

Her Majesty the Queen in Right of Alberta                                                Respondent

and

Attorney General of Ontario,

Attorney General of New Brunswick,

Attorney General of British Columbia,

Attorney General of Prince Edward Island,

Canadian Teachers’ Federation,

Alberta Federation of Labour and

Public School Boards’ Association of Alberta                                              Interveners

Indexed as:  Baier v. Alberta

Neutral citation:  2007 SCC 31.

File No.:  31526.

2006:  November 9; 2007:  June 29.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal of alberta

Constitutional law — Charter of Rights  — Freedom of expression — School board elections — Ineligibility of school employees — Provincial government enacting legislation imposing province‑wide restriction on school employees serving as school trustees — Whether legislation infringes freedom of expression — Canadian Charter of Rights and Freedoms, s. 2(b)  — Local Authorities Election Act, R.S.A. 2000, c. L‑21, s. 22 — School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a).

Constitutional law — Charter of Rights  — Right to equality — School board elections — Ineligibility of school employees — Provincial government enacting legislation imposing province‑wide restriction on school employees serving as school trustees — Whether legislation infringes right to equality — Whether occupational status an analogous ground — Canadian Charter of Rights and Freedoms, s. 15(1)  — Local Authorities Election Act, R.S.A. 2000, c. L‑21, s. 22 — School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a).

Education law — School authorities — School board elections — Ineligibility of school employees — Provincial government enacting legislation imposing province‑wide restriction on school employees serving as school trustees — Whether legislation infringes freedom of expression or right to equality — Canadian Charter of Rights and Freedoms, ss. 2(b) , 15(1)  — Local Authorities Election Act, R.S.A. 2000, c. L‑21, s. 22 — School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a).

The Local Authorities Election Act (“LAEA”) governs the proceedings for election to municipal councils and school boards in Alberta.  Prior to the amendments at issue here, it restricted school employees from running for election as school trustees only in the jurisdiction in which they were employed.  In 2004, the School Trustee Statutes Amendment Act, 2002 amended the LAEA to restrict school employees from running for election as school trustees anywhere in the province unless they took a leave of absence and then resigned if elected.  The appellants sought to have the LAEA amendments declared unconstitutional as violating ss. 2( b )  and 15(1)  of the Charter .  The Court of Queen’s Bench granted an order that the LAEA amendments were contrary to s. 2( b )  of the Charter , and were not justified under s. 1 .  The Court of Appeal set aside the decision, concluding that the LAEA amendments do not infringe ss. 2( b )  or 15  of the Charter .

Held (Fish J. dissenting):  The appeal should be dismissed.

Per McLachlin C.J., Binnie, Deschamps, Charron and Rothstein JJ.:  The expressive aspects of school trustee candidacy and school trusteeship are sufficient to consider whether s. 2(b) is violated.  Section 2 generally imposes a negative obligation on government rather than a positive obligation of protection or assistance.  Here, the right claimed is a positive one, as the appellants are seeking access to the statutory platform of school trustee candidacy and school trusteeship.  The fact that they had access to this platform prior to the LAEA amendments cannot convert their claim into a negative one.  Since the appellants are making a positive claim, the question is whether their claim meets the grounds for an exception to the general rule that s. 2(b) only protects from government interference.  [20] [33] [35‑36] [43]

Claims of underinclusion should be grounded in fundamental Charter  freedoms rather than in access to a particular statutory regime.  Since the appellants’ claim is grounded in access to the particular regime of school trusteeship, it does not meet this first Dunmore criterion.  Nor does the claim meet the second Dunmore factor.  The appellants have not established that their practical exclusion from school trusteeship substantially interferes with their ability to express themselves on matters relating to the education system.  The LAEA amendments may deprive them of one particular means of expression, but it has not been demonstrated that absent inclusion in this statutory scheme, they are unable to express themselves on education issues.  Nor have the appellants proved that the purpose of the LAEA amendments was to infringe their freedom of expression.  Because the appellants have not established a substantial interference with their ability to exercise their freedom of expression, it is unnecessary to consider the third Dunmore factor.  [44] [48] [54]

Using s. 3 to read down the scope of s. 2( b )  of the Charter  would stray from the long‑standing recognition of the overlapping relationship of various Charter  rights.  A finding that s. 3  does not apply does not foreclose consideration of a claim under s. 2(b).  Nevertheless, there is no s. 2(b) violation in this case.  [59‑60]

There was no infringement of s. 15(1)  of the Charter .  While there is differential treatment of school employees under the LAEA amendments as compared with municipal employees, this differential treatment is not based on an enumerated or analogous ground.  There is no basis for identifying occupational status as an analogous ground on the evidence presented here.  Neither the occupational status of school employees nor that of teachers have been shown to be immutable or constructively immutable characteristics.  Moreover, school employees cannot be characterized as a discrete and insular minority.  The appellants have not established that the occupational status of school employees is a constant marker of suspect decision making or potential discrimination.  [63] [65] [67]

Per Bastarache, LeBel and Abella JJ.:  Despite the undeniable breadth of the constitutional guarantee of freedom of expression, the guaranteed freedom does not protect a right to run for office as a school trustee and, if elected, to take part in the management of the school board.  At its foundation, the appellants’ claim concerns a democratic right that the Charter  does not protect.  The LAEA amendments’ ban on school employees running for office and serving as school trustees does not prevent them from expressing views on any subject, let alone education.  The appellants seek to secure constitutional protection for a right to be elected to a management role in the local education system of the province of Alberta, but this falls outside the scope of the Charter  unless the equality rights of s. 15  are engaged.  The appellants have not made out their claim of a breach of equality rights in the circumstances of this case.  [72] [75] [77]

Per Fish J. (dissenting):  The deliberate suppression of political expression by Alberta in this case violates s. 2( b )  of the Charter .  A legislature which sets up a system of democratically elected boards to administer a fundamental aspect of government activity may not then exclude a certain category or group of otherwise qualified persons from serving on those boards, without any need to justify that exclusion under s. 1  of the Charter .  [79] [86]

This Court has traditionally interpreted the freedom of expression guaranteed by s. 2( b )  of the Charter  broadly and the decision in Dunmore should not be applied so as to narrow s. 2(b).  A narrow interpretation of Dunmore would allow legislatures, limited only by their obligations under s. 15, to systematically deny groups access to statutory platforms of expression otherwise available to the public at large.  Rather, Dunmore should be viewed in light of this Court’s practice of construing freedom of expression broadly and considering limits on expressive activity at the justification stage of the analysis.  This is even more important where, as here, political expression associated with participation in an important democratic institution is involved.  [99‑100] [103]

The appellants’ claim is grounded in the fundamental, constitutionally protected freedom to express oneself meaningfully on matters related to education.  This freedom clearly exists independently of any statutory enactment.  Seeking and holding office as a school trustee is a uniquely effective means of expressing one’s views on education policy.  While diminished effectiveness in conveying a message may not always engage s. 2(b), the difference between writing a letter to a trustee and serving as a trustee is not simply one of degree.  By prohibiting school employees from participating in school board elections and governance, Alberta has done more than restrict a particular channel of expression.  By excluding school employees from running for office, Alberta has substantially interfered with their freedom of expression.  [105] [107‑109]

Where a legislature establishes a universal and democratic system of local governance and then effectively prohibits the participation in that system of a particular group of otherwise qualified citizens, the state must be required to justify that prohibition.  It has not done so in this case.  On the first branch of the Oakes test, the trial judge was entitled to find, as she did, that Alberta’s assertion of a pressing and substantial concern could not succeed, and nothing before this Court permits of a different conclusion.  In any event, the LAEA amendments would clearly fail the minimum impairment branch of the Oakes test.  [110‑111] [119‑120]

Cases Cited

By Rothstein J.

Applied:  Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Haig v. Canada, [1993] 2 S.C.R. 995; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; referred to:  R. v. Zundel, [1992] 2 S.C.R. 731; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Montréal (City) v. 2952‑1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15; Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43; R. v. Lyons, [1987] 2 S.C.R. 309; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.

By LeBel J.

Referred to:  Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.

By Fish J. (dissenting)

Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; R. v. Oakes, [1986] 1 S.C.R. 103.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) , (d), 15 , 27 .

Local Authorities Election Act, R.S.A. 2000, c. L‑21, ss. 21, 22.

School Act, R.S.A. 2000, c. S‑3.

School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2).

Authors Cited

Cameron, B. Jamie.  “The ‘Second Labour Trilogy’:  A Comment on R. v. Advance Cutting, Dunmore v. Ontario, and R.W.D.S.U. v. Pepsi‑Cola” (2002), 16 S.C.L.R. (2d) 67.

Hogg, Peter W.  Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.:  Carswell, 1992 (updated 2006, release 1).

APPEAL from a judgment of Court of Appeal of Alberta (Picard, Costigan and Ritter JJ.A.) (2006), 57 Alta. L.R. (4th) 205, 384 A.R. 237, 269 D.L.R. (4th) 241, [2006] 8 W.W.R. 33, [2006] A.J. No. 447 (QL), 2006 ABCA 137, allowing an appeal and dismissing a cross‑appeal from a judgment of Sulyma J. (2004), 38 Alta. L.R. (4th) 303, 369 A.R. 159, 123 C.R.R. (2d) 215, [2005] 7 W.W.R. 68, [2004] A.J. No. 1003 (QL), 2004 ABQB 669.  Appeal dismissed, Fish J. dissenting.

James T. Casey, Q.C., Sandra M. Anderson and Ayla Akgungor, for the appellants.

Kurt J. W. Sandstrom and Alice K. Barnsley, for the respondent.

Robert E. Charney, for the intervener the Attorney General of Ontario.

Gaétan Migneault, for the intervener the Attorney General of New Brunswick.

Neena Sharma and E. W. (Heidi) Hughes, for the intervener the Attorney General of British Columbia.

Written submissions only by Ruth M. DeMone and Sherry E. Gillis, for the intervener the Attorney General of Prince Edward Island.

Allan O’Brien and Christopher Rootham, for the intervener the Canadian Teachers’ Federation.

Leanne M. Chahley and Daniel N. Scott, for the intervener the Alberta Federation of Labour.

Dale Gibson, for the intervener the Public School Boards’ Association of Alberta.

The judgment of McLachlin C.J. and Binnie, Deschamps, Charron and Rothstein JJ. was delivered by

Rothstein J. —

I. INTRODUCTION

1                                   This case concerns whether legislation that limits the ability of school employees to run for election and serve as school trustees in Alberta is constitutional.

2                                   I agree with the conclusion reached by the Alberta Court of Appeal.  The legislation does not infringe s. 2( b )  or 15  of the Canadian Charter of Rights and Freedoms .  Therefore I would dismiss the appeal.

II. FACTUAL BACKGROUND

3                                   The Local Authorities Election Act, R.S.A. 2000, c. L-21 (“LAEA”), governs the proceedings for election to municipal councils and school boards in Alberta.  The LAEA sets out the qualifications required to be a candidate for school trustee.  A person may be nominated as a candidate if he or she is eligible to vote, meets certain residency requirements, and is not otherwise ineligible (s. 21). 

4                                   Ineligibility to be nominated as a candidate is dealt with in s. 22 of the LAEA.  Prior to the amendments at issue in this appeal, it restricted school employees from running for election as a school trustee only in the jurisdiction in which they were employed (“own-employer restriction”).  Any public school employees who wished to seek election to their employing school board were required to take a leave of absence and were deemed to have resigned if elected (ss. 22(1)(b) and 22(9)).  There was no requirement to take a leave of absence or to resign if a school employee was elected as a school trustee to any other school board.

5                                   In 2004, Alberta legislated to expand the “own-employer” restriction into a province-wide restriction on school employees serving as school trustees.  The School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23 (“LAEA Amendments”), amended the LAEA by adding a provision stating that, unless on a leave of absence, a person is not eligible to be nominated as a candidate for election as a trustee of any school board if that person is employed by any school district or division, charter school, or private school in Alberta.  If a school employee is ultimately elected as a school trustee, s. 22(9) of the LAEA is engaged, which deems the school employee to have resigned his or her position of employment in order to carry out the role of school trustee.  There is therefore a deemed resignation even when a school employee is elected to a school board which is not his or her employer.

6                                   The appellants Baier, Ollenberger and McNiff are teachers who, at the time the LAEA Amendments were passed, were serving as school trustees on school boards that did not employ them.  The appellant Keith is a teacher who intended to seek election to a school board.  The parties agree that “average school trustee remuneration in 2002-2003 was approximately $12,677”.  According to the chambers judge, in 2004 the appellants Baier, Ollenberger, and McNiff had annual salaries as teachers of $71,536.68, $83,626.80 and $69,165.96 respectively.

7                                   The appellants sought to have the LAEA Amendments declared unconstitutional as violating ss. 2( b )  and 15(1)  of the Charter .  At the hearing of the appeal in this Court, the appellants conceded the constitutionality of the prior legislation, which prohibited school employees from serving as trustees solely on their own employer boards.  It is the blanket restriction from sitting on any school board in the province that they challenge.

8                                   The chambers judge, Sulyma J. granted an order that the LAEA Amendments were contrary to s. 2( b )  of the Charter  and were not justified under s. 1.  At the Alberta Court of Appeal, Alberta’s appeal was allowed.

III. RELEVANT STATUTORY PROVISIONS

9                                   The relevant statutory provisions are set out in the Appendix.  The main provision that the appellants challenge in this appeal is s. 1(2)(a) of the LAEA Amendments, which amends the LAEA in order to restrict school employees from sitting on any school board in Alberta.  This amendment adds to s. 22 of the LAEA the following:

22 ...

(1.1) A person is not eligible to be nominated as a candidate for election as a trustee of a school board if on nomination day the person is employed by

(a) a school district or division,

(b) a charter school, or

(c) a private school,

in Alberta unless the person is on a leave of absence granted under this section.

Under the amendments, a school employee may request a leave of absence in order to be a candidate for school trustee and his or her employer must grant that leave of absence (LAEA, ss. 22(5.1) and 22(6.1)).  Should the employee not be elected he or she may return to work (LAEA, s. 22(8)).  If the employee is elected he or she will be deemed to have resigned as a school employee (LAEA, s. 22(9)).

10                               The appellants also challenge s. 1(2)(b) of the LAEA Amendments, which provides that the prior more limited ineligibility provision, the “own-employer restriction”, no longer applies to school trustee elections.

11                               Section 2( b )  of the Charter  provides:

2. Everyone has the following fundamental freedoms:

...

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

12                               Section 15(1)  of the Charter  provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

IV. ISSUES

13                               On August 17, 2006, the Chief Justice stated the following constitutional questions:

1.                Do ss. 1(2)(a) and 1(2)(b) of the  School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, infringe s. 2( b )  of the Canadian Charter of Rights and Freedoms ?

2.                If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

3.                Do ss. 1(2)(a) and 1(2)(b) of the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, infringe s. 15  of the Canadian Charter of Rights and Freedoms ?

4.                If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

V.  JUDGMENTS BELOW

A. Court of Queen’s Bench of Alberta (2004), 38 Alta. L.R. (4th) 303, 2004 ABQB 669

14                               Sulyma J. held that running for office is an activity which conveys or attempts to convey meaning and therefore falls within the scope of the s. 2(b) guarantee.  She held that the purpose of the amendments did not infringe s. 2(b) since the legislation was meant to protect the democratic process by ensuring the business of school boards can be carried on without concerns about conflicts of interest.  However, with respect to the effects, Sulyma J. found that given the significant disparity between a teacher’s salary and trustee remuneration, forcing teachers to resign from their employment for the duration of their term as trustees rendered illusory any opportunity for teachers to run for office as school trustee under the LAEA Amendments.  Unless they gave up teaching, they would be forced to live on the remuneration paid to school trustees, and this was so onerous as to result in a violation of the s. 2(b) guarantee.

15                               Sulyma J. concluded that the LAEA Amendments could not be saved by s. 1  of the Charter .  She did not rule on the Charter  s. 15  claim.

B.  Court of Appeal of Alberta (2006), 57 Alta. L.R. (4th) 205, 2006 ABCA 137

16                               Alberta appealed Sulyma J.’s findings with respect to s. 2(b).  The appellants cross-appealed alleging an infringement of s. 15(1).

17                               Costigan J.A., for the court, considered whether seeking election to a school board is a fundamental freedom protected by s. 2(b) or whether it is a statutory platform for expression.  He found that whether to have school board elections and, if so, who can run in those elections, was purely a matter of legislative policy governed by the LAEA Amendments. The appellants’ claim of underinclusion was therefore grounded in a statutory regime and not in a fundamental Charter  freedom. Their exclusion under the LAEA Amendments did not interfere with a fundamental freedom or with the exercise of a constitutional right, and this was not an exceptional case in which the context mandated positive government action under s. 2(b).  Therefore, he found that the LAEA Amendments did not infringe s. 2( b )  of the Charter .

18                               Examining whether the LAEA Amendments infringed s. 15(1)  of the Charter , Costigan J.A. relied on the test established in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.  He held that the LAEA Amendments “draw a formal distinction between the respondents as school board employees and other Albertans on the basis of the personal characteristic of employment status” (para. 49).  However, he found that the appellants’ “occupational status is not an analogous ground” (para. 56).  Moreover, he held that a distinction on the basis of the teaching occupation does not bring into play prejudice, stereotyping or historical disadvantage, and exclusion from seeking election to a school board did not affect the appellants’ dignity.  Therefore, the distinction was not discriminatory and there was no infringement of s. 15(1).  He allowed the appeal and dismissed the cross-appeal.

VI. ANALYSIS

A.  Freedom of Expression

19                               In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, a two-part analysis was established for determining whether a violation of freedom of expression has occurred.  The first step asks whether the activity is within the protected sphere of free expression.  If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.  Once it is established that the activity is protected, the second step asks if the impugned legislation infringes that protection, either in purpose or effect.  This analysis has been used in many subsequent cases (e.g. R. v. Zundel, [1992] 2 S.C.R. 731, Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083).

20                               While the Irwin Toy test defined the scope of freedom of expression broadly, in subsequent cases this Court has clarified that s. 2(b) protection is not without limits and that governments should not be required to justify every exclusion or regulation of expression under s. 1 (Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, at para. 79).  In City of Montréal, McLachlin C.J. and Deschamps J., for the majority, found that the method or location of expression may remove it from s. 2(b) protection (paras. 56 and 60).  For example, with respect to the method of expression, s. 2(b) does not protect violent expression (Irwin Toy, at pp. 969-70), and with respect to location, expression on public property may in some circumstances remain outside the protected sphere of s. 2(b) (City of Montréal, at para. 79).  In addition, the Court has held that s. 2 generally imposes a negative obligation on government rather than a positive obligation of protection or assistance (Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1035; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, at para. 26).

21                               In Haig, this Court considered whether freedom of expression includes a positive right to be provided with a specific means of expression.  L’Heureux-Dubé J. for the majority, noted that freedom of expression has typically been conceptualized in terms of negative rights rather than positive entitlements:

The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones. [p. 1035]

22                               That case arose in the context of federal and Quebec referenda concerning proposed constitutional amendments in 1992.  Mr. Haig had moved from Ontario to Quebec and was unable to vote in either the federal or Quebec referendum because of different residency requirements in the federal and provincial legislation.  He challenged the federal legislation as violating his freedom of expression.  The majority held that the right to vote in the referendum was governed by the Referendum Act , S.C. 1992, c. 30 , and s. 2(b) did not require the government to extend that right to all.  L’Heureux-Dubé J. stated:

The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status. In my view, though a referendum is undoubtedly a platform for expression, s. 2( b )  of the Charter  does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone. A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law. [Emphasis added; p. 1041.]

23                               The statutory platform analysis in Haig has been followed in a number of subsequent cases which have held that underinclusive legislative schemes or government action did not infringe s. 2.  In Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627 (“NWAC”), the Native Women’s Association of Canada (“NWAC”) alleged that the government’s funding of some Aboriginal organizations, along with the opportunity to participate in constitutional discussions, required the government to bestow upon the NWAC an equal chance for expression of its views, and funding to enable it to do so.  The Court determined that there was no positive duty on the government to provide funding to NWAC in the circumstances.  Sopinka J., for the majority, stated:

[I]t cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, that the Government is also required to fund a group purporting to represent the opposite point of view. [p. 656]

and

The freedom of expression guaranteed by s. 2( b )  of the Charter  does not guarantee any particular means of expression or place a positive obligation upon the Government to consult anyone. [p. 663]

24                               In Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3, the Court considered legislation, the Gaming Control Local Option (VLT) Act, S.M. 1999, c. 44, enabling municipalities to hold binding plebiscites on prohibiting video lottery terminals (“VLTs”).  The legislation also deemed a previous non-binding plebiscite in the Town of Winkler, in which the residents had voted to prohibit VLTs, to be binding.  The appellants, owners of the Winkler Inn who relied on VLTs for revenue, claimed that the effect of the “deemed vote” was to deny them the right to vote in a plebiscite under the Act, and therefore violated their freedom of expression.  Following Haig, the Court held there was no breach of s. 2(b).  A municipal plebiscite, like a referendum, was a creation of legislation, and any right to vote in it must be found within the language of that legislation.

25                               The statutory platform analysis in Haig has also been applied in cases raising claims under Charter  s. 2( d )  freedom of association.  In Delisle, the Court considered whether underinclusive labour legislation offended s. 2(d) or 2(b).  Bastarache J., for the majority, found that neither s. 2(d) or 2(b) required that RCMP officers be included in a statutory labour regime.  He made clear that underinclusive legislation would generally not offend s. 2:

The structure of s. 2  of the Charter  is very different from that of s. 15 and it is important not to confuse them. While s. 2 defines the specific fundamental freedoms Canadians enjoy, s. 15 provides they are equal before and under the law and have the right to equal protection and equal benefit of the law. The only reason why s. 15 may from time to time be invoked when a statute is underinclusive, that is, when it does not offer the same protection or the same benefits to a person on the basis of an enumerated or analogous ground (on this issue, see Schachter v. Canada, [1992] 2 S.C.R. 679), is because this is contemplated in the wording itself of s. 15. ... However, while the letter and spirit of the right to equality sometimes dictate a requirement of inclusion in a statutory regime, the same cannot be said of the individual freedoms set out in s. 2, which generally requires only that the state not interfere and does not call upon any comparative standard. [para. 25]

Citing Dickson J.’s definition of “freedom” as “the absence of coercion or constraint” R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 336), Bastarache J. went on to state at para. 26:

It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance.

As Bastarache J. stated at para. 27 of Delisle, except in exceptional circumstances, ss. 2(d) and 2(b) require only that Parliament not interfere with these fundamental freedoms.

26                               While Haig, NWAC, Siemens and Delisle, found s. 2 was not offended by underinclusive legislation or underinclusive government action and that there was no right to a particular platform for expression, the Court left open the possibility that, in exceptional cases, positive action by government may be called for under s. 2.  In Haig, for example, L’Heureux-Dubé J. left the door open to positive government action being required in some cases.  At p. 1039, she stated:

... a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required.  This might, for example, take the form of legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information.

27                               In Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, a majority of the Court found such an exception to the general rule that s. 2 does not require positive government action.  Labour legislation excluding agricultural workers from a protective regime was found to infringe s. 2(d).  Bastarache J., for the majority, considered the factors relevant to establishing an exception:

(1) Claims of underinclusion should be grounded in fundamental Charter  freedoms rather than in access to a particular statutory regime (para. 24).

(2) The claimant must meet an evidentiary burden of demonstrating that exclusion from a statutory regime permits a substantial interference with activity protected under s. 2 (para. 25), or that the purpose of the exclusion was to infringe such activity (paras. 31-33).  The exercise of a fundamental freedom need not be impossible, but the claimant must seek more than a particular channel for exercising his or her fundamental freedoms (para. 25).

(3) The state must be accountable for the inability to exercise the fundamental freedom: “[U]nderinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms” (para. 26).

28                               In Dunmore, these factors were met.  The appellant agricultural workers sought protection for the freedom to establish and maintain an employee association.  They were substantially incapable of exercising their fundamental freedom to organize without protective legislation.  Furthermore, their exclusion from the legislative regime “function[ed] not simply to permit private interference with their fundamental freedoms, but to substantially reinforce such interferences” (para. 35).  Agricultural workers were distinguished from the RCMP officers in Delisle because RCMP officers were capable of associating despite exclusion from a protective regime.  Unlike agricultural workers, for RCMP officers, inclusion in a statutory regime would serve to enhance rather than safeguard their exercise of a fundamental freedom.

29                               While Dunmore concerned freedom of association rather than freedom of expression, the three factors for challenging underinclusive legislation were described as applicable to s. 2 in general.  As Bastarache J. noted, Haig, NWAC and Delisle circumscribed, but did not foreclose, the possibility of challenging underinclusion under s. 2  of the Charter .  Thus, Dunmore makes clear that while claims of underinclusion may raise concerns under Charter  s. 15  equality rights, in certain cases, underinclusion may offend s. 2 itself.

30                               In cases where a government defending a Charter  challenge alleges, or the Charter  claimant concedes, that a positive rights claim is being made under s. 2(b), a court must proceed in the following way.  First it must consider whether the activity for which the claimant seeks s. 2(b) protection is a form of expression.  If so, then second, the court must determine if the claimant claims a positive entitlement to government action, or simply the right to be free from government interference.  If it is a positive rights claim, then third, the three Dunmore factors must be considered.  As indicated above, these three factors are (1) that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime; (2) that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s. 2(b) freedom of expression, or has the purpose of infringing freedom of expression under s. 2(b); and (3) that the government is responsible for the inability to exercise the fundamental freedom.  If the claimant cannot satisfy these criteria then the s. 2(b) claim will fail.  If the three factors are satisfied then s. 2(b) has been infringed and the analysis will shift to s. 1.

VII.  APPLICATION TO THE CASE

Question 1

Do ss. 1(2)(a) and 1(2)(b) of the School Trustee Statutes Amendment Act, 2002, infringe s. 2( b )  of the Canadian Charter of Rights and Freedoms ?

A. Expressive Activity

31                               The threshold to any s. 2(b) claim must be that there is expression involved.  The appellants claim that “[s]tanding for election to the office of school trustee and serving as a school trustee” are expressive activities, the restriction of which they claim violates s. 2(b) (appellants’ factum, at para. 27).  These activities, they argue, represent “unique and important opportunities to engage in political debate, persuasion and voting on the governance, funding and management of the public and separate education systems” (ibid.). The respondent concedes that seeking nomination for school trustee and some of the activities of school trustees may be characterized as having an expressive nature (respondent’s factum, at paras. 1 and 18).

32                               It might be said that the expressive nature of school trusteeship is merely incidental, and that school boards are primarily concerned with school management rather than expression.  However, there is nothing that requires that the activity in question be purely or predominantly expression to count as expression for s. 2(b) purposes (see e.g. RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 588).

33                               The LAEA Amendments only restrict who has access to the platform of school trusteeship for expressive activity.  They do not constrain the expressive activities of those with access to the platform i.e. those not ineligible to be school trustees.  I interpret the appellants’ complaint as “I do not have access to school trusteeship to express myself” rather than, “as a school trustee I cannot express a particular view”.  Expressive activity is in issue, although what is restricted is the platform on which that expression may take place rather than the content of the expression.  I find that the expressive aspects of school trustee candidacy and school trusteeship are sufficient to continue consideration of whether s. 2(b) is violated.

B. Is a Positive Right Claimed?

34                               Having decided that expression is involved, it must next be determined whether that expression is protected under s. 2(b).  As previously observed, s. 2(b) is not without limits and not every expressive activity is accorded constitutional protection.  Alberta submits that the appellants are claiming a positive right, because the activities at issue exist only by virtue of the school board system set up under the School Act, R.S.A. 2000, c. S-3, and the trustee election provisions in the LAEA.  The appellants claim that they are not seeking a positive right but simply wish to preserve the legislative status quo ante in existence since from at least 1961 until the LAEA Amendments were enacted.  They ask for the Court’s assistance in respect of what they claim is their negative right to be free from a newly imposed government restraint on their freedom of expression, not in respect of a positive right to a particular platform or benefit to which they previously had no access.

35                               To determine whether a right claimed is a positive right, the question is whether the appellants claim the government must legislate or otherwise act to support or enable an expressive activity.  Making the case for a negative right would require the appellants to seek freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage, without any need for any government support or enablement.

36                               The appellants in this case make a claim for the government to legislate to enable expressive activity.  Their claim is thus a positive one.  The appellants seek access to the statutory platform of school trustee candidacy and school trusteeship.  The fact that the appellants had access to this statutory platform prior to the LAEA Amendments cannot convert their claim into a negative one.  There is no meaningful distinction in this case between a hypothetical situation where the government for the first time provides for elected school boards with provisions to disqualify school employees from running and serving as trustees, and the present situation where pre-existing legislation has been amended to that end.  To hold otherwise would mean that once a government had created a statutory platform, it could never change or repeal it without infringing s. 2(b) and justifying such changes under s. 1.

37                               In Dunmore, the statutory platform at issue had previously been extended to the claimants and had been withdrawn by amending legislation.  The Court in that case nonetheless concluded that the claim presented was one of positive entitlement.  The same is true in this case.  The appellants had previously been included in the statutory scheme in question.  The LAEA Amendments excluded them.  They now seek inclusion in an underinclusive statutory scheme, the hallmark of a positive rights claim.

38                               The appellants are asking this Court in effect to constitutionalize the prior regime.  Although school boards play an important role in educational governance by carrying out the mandatory and discretionary duties prescribed to them in Alberta by the School Act, they are creatures of the provincial government, and their existence is not constitutionally protected.  As this Court held in Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15, at paras. 57-58:

Subject to s. 93, public school boards as an institution have no constitutional status.           

Campbell J. correctly stated the law in this regard in Ontario Public School Boards’ Assn., supra, at p. 361:

     Municipal governments and special purpose municipal institutions such as school boards are creatures of the provincial government. Subject to the constitutional limits in s. 93  of the Constitution Act, 1867  these institutions have no constitutional status or independent autonomy and the province has absolute and unfettered legal power to do with them as it wills.

See also Alberta Public Schools, supra, at paras. 33 and 34.

39                               Voting and candidacy rights are explicitly protected in s. 3  of the Charter  but only in relation to the House of Commons and provincial legislatures.  The intervener Public School Boards’ Association of Alberta submits that school boards as institutions of local government have constitutional status in the “conventional or quasi-constitutional sense”.  However, it is not for this Court to create constitutional rights in respect of a third order of government where the words of the Constitution read in context do not do so.

40                               The appellants argued that s. 2(b) engages the interest of the receiver as well as the sender of expression and that the LAEA Amendments deprive the receiver of the right to decide to hear school employees’ messages, and to decide that a particular school employee is or is not the best candidate to serve as trustee.  While it may be true that s. 2(b) generally includes a right to receive as well as broadcast expression (see e.g. Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43, at para. 26), just as there is no s. 2(b) right of access to statutory platforms, there is no s. 2(b) right to receive expression through a particular statutory platform.

41                               The appellants argue that s. 2(b) would be very limited if it applied only to areas unregulated by statute.  However, the distinction between positive and negative rights does not rest on whether expression or activity is unregulated by statute, but rather on whether what is sought is positive government legislation or action as opposed to freedom from government restrictions on activity in which people could otherwise freely engage without government enablement.  For example, Libman involved a successful challenge of legislation that regulated referendum campaign expenditures by providing that only the agents of official “Yes” or “No” committees were permitted to incur or authorize certain expenditures.  Those not part of the official committees were thus unable to make expenditures to, for example, publicize their point of view on the referendum.  The Court held that their fundamental freedom of expression to incur expenditures in promoting their views was infringed.  The activity, incurring expenditures to promote views on the referendum, was regulated by statute, but the claim was a negative one, to be free from statutory restrictions on incurring such expenditures.  Thus, the fact that a matter is regulated by statute is not what limits s. 2(b) protection.  What is limited is a right to a platform under the statute.

42                               The appellants submit that their claim should have been considered under the Irwin Toy test and that the Court of Appeal wrongly applied Haig to their case.  They argue that the Court of Appeal’s approach would allow Alberta to enact legislation forbidding school trustees from criticizing government underfunding of schools.  However, challengers to such a law would not be seeking access to a statutory platform.  They would be seeking freedom from a constraint placed upon their expression, a typically negative right.  Their prior ability to criticize government underfunding would be by virtue, not of their school trusteeship, but their underlying freedom of expression. Their complaint would not be that the legislation is underinclusive and thus would not be considered under the Haig line of authority.  The case at bar is different.  The Court of Appeal was correct in looking to the line of authority based on Haig when what was sought was access to a statutory platform.

C. Are the Dunmore Factors Met Here?

43                               Having determined that the appellants are making a positive claim that the government legislate their inclusion into the platform of school trusteeship, the question is whether their claim meets the grounds for an exception to the general rule that s. 2(b) only protects from government interference.  This involves a consideration of the three factors identified by Bastarache J. in Dunmore as stated above.

44                               First, claims of underinclusion should be grounded in fundamental Charter  freedoms rather than in access to a particular statutory regime.  In this case, the appellants assert the right to run for election and to serve as school trustees.  The appellants argue that the unique role of a school trustee means that when a teacher seeks to be able to run as a school trustee it is a fundamental freedom.  However, claiming a unique role is not the same as claiming a fundamental freedom.  The appellants’ claim, as they have articulated it, is grounded in access to the particular statutory regime of school trusteeship.  As such it would not meet the first of the Dunmore criteria. 

45                               Even if the appellants could meet the first Dunmore factor, they would fail at the second.  Under the second Dunmore criterion, the claimant must demonstrate that exclusion from a statutory regime has the effect of a substantial interference with activity protected under s. 2.  The question is whether the LAEA Amendments substantially interfere with the appellants’ freedom to express themselves on matters related to the education system.

46                               I agree with Sulyma J., the chambers judge, that the effect of the LAEA Amendments will in many cases amount to school employees being practically excluded from school trusteeship.  School employees may be unable to afford to resign from their posts in order to serve as trustees.  However, the question remaining is whether this exclusion substantially interferes not with being a trustee, but with expression on matters related to the education system.

47                               The appellants submit that there are no “alternatives” to the forms of expression they would enjoy by standing for election to the office of school trustee and serving in that role.  Alberta claims that every school employee remains free to express him or herself in relation to school board operations in a myriad of other ways.  Such persons, it submits, can participate and make presentations at school board meetings, lobby trustees, sit on school councils, write letters to newspapers, give media interviews, and write to MLAs and other public officials.

48                               In my view, the appellants have not established that their practical exclusion from school trusteeship substantially interferes with their ability to express themselves on matters relating to the education system.  The LAEA Amendments may deprive them of one particular means of expression, but it has not been demonstrated that absent inclusion in this statutory scheme, they are unable to express themselves on education issues.  As Bastarache J. noted in Delisle at para. 41, diminished effectiveness in the conveyance of a message does not mean that s. 2(b) is violated.  There must be substantial interference with the fundamental freedom.  School employees may express themselves in many ways other than through running for election as, and serving as, a school trustee.

49                               While the chambers judge mentioned the “uniqueness” of running for election and trusteeship as a form of expression and that the LAEA Amendments “drastically impair” freedom of expression, this was in the context of her s. 1 analysis (paras. 155 and 157).  Having found, in error, that school trusteeship and candidacy were protected expression, her findings on the “uniqueness” of trusteeship were in respect of whether that specific form of expression was minimally impaired.  However, the analysis under the second Dunmore factor involves a different question.  The inquiry is whether freedom of expression on educational matters, as a more generally defined fundamental freedom under s. 2(b), is substantially interfered with by exclusion from school trusteeship.  As stated above, the appellants’ ability to be a candidate and serve as a school trustee is significantly impaired by the legislation.  But school trusteeship in itself is not a protected freedom.

50                               In their factum in this Court, the appellants made brief reference to the purpose of the legislation as infringing s. 2(b): “Alberta’s purpose was to restrain the Appellants’ expressive activities” (para. 60).  If it were shown that the purpose of any legislation was to substantially interfere with the exercise of freedom of expression, and not merely a purpose of excluding a group from a particular statutory regime, that legislation might violate s. 2(b).  As Dickson J. for the majority in Big M Drug Mart at p. 334 stated, effects can never be relied on to save legislation with an invalid purpose. 

51                               However, the appellants did not support their claim of improper purpose with reference to specific evidence.  Elsewhere in their factum they allege that conflict of interest, Alberta’s asserted purpose for the legislation, was “simply the ‘straw man’ to excuse the draconian provisions of the [LAEA Amendments]” (para. 7).   In that context they say that the amendments were introduced “hard on the heels of a series of strikes by teachers . . . and a government back-to-work order” that was struck down by the Court of Queen’s Bench (para. 8).

52                               On the other hand, as indicated, Alberta submits that the purpose of the amendments was avoidance of conflict of interest.  Alberta referred to occasions on which the appellants, Ollenberger, McNiff and Baier recused themselves from discussions and voting on collective agreements and salary negotiations. 

53                               The chambers judge found “the purpose of the LAEA Amendments . . . does not infringe s. 2(b) as the legislation is meant to protect the democratic process by ensuring the business of school boards can be carried on without concerns about conflicts of interest” (para. 79).  The party alleging improper purpose has the onus of demonstrating that to be true (Delisle, at para. 76, per Cory and Iacobucci JJ.).  If there is a connection between the strike, the back to work order and the purpose of the legislation, it is, without more, attenuated.  On this basis, I would not interfere with the findings of the chambers judge on this point.

54                               The appellants have not met the evidentiary burden of demonstrating that exclusion from the statutory regime permits a substantial interference with their freedom of expression on school board issues or education generally.  Rather they seek a particular channel of expression.  Nor have the appellants proved that the purpose of the LAEA Amendments was to infringe their freedom of expression.  Therefore, their claim does not meet the second Dunmore factor.  Because the appellants have not established a substantial interference with their ability to exercise their freedom of expression, it is unnecessary to consider the third Dunmore factor. 

55                               In finding against the appellants here, I leave open the possibility that there may be exceptional situations where exclusion from a statutory platform interferes substantially with fundamental freedom of expression and meets the Dunmore criteria.  While s. 2(b) does not give a right to a specific statutory platform, so that restricting access to such a platform will not generally offend s. 2(b), and while Dunmore itself was decided under s. 2(d) rather than s. 2(b), there may be exceptional cases where exclusion from a platform so substantially interferes with freedom of expression that it may infringe s. 2(b).  However, the case at bar is not such a case.

D. Interrelationship of Charter Rights

56                               LeBel J. characterizes the appellants’ claim as the “right to take part in the management of Alberta’s local education systems”, although he concedes that “significant aspects of the role of a school trustee involve...expressive activities [which] belong in large part to the class of political expression” (para. 75).  Despite this, he argues that freedom of expression is not engaged where the activity is “running for office and serving as a trustee on a school board” because what is fundamentally being claimed is a democratic right not protected by the Charter .  I understand his idea to be that because the democratic rights enshrined in s. 3  of the Charter  extend only to Parliamentary and legislative elections, the Charter  does not protect the right to participate in other elections.

57                               I agree with LeBel J. that the appellants’ claim could be characterized as a claim for a democratic right.  However, it does not follow that s. 2(b) is not engaged.  In Haig, the right to vote in a referendum was held not to be protected under s. 3.  Notwithstanding the unsuccessful s. 3 claim, voting was held to be a form of expression (at p. 1040) and the claim was considered under s. 2(b).  This approach was followed in Siemens, a unanimous decision of this Court (para. 41).  Under LeBel J.'s approach, the Court would have held in each of these cases that at its foundation, the claim was for a democratic right which the Charter  did not protect.  Thus, the expressive aspects of voting would have been irrelevant and there would have been no consideration under s. 2(b). 

58                               As LeBel J. concedes, Charter  rights overlap and cannot be pigeonholed.  The interrelationship between the Charter ’s various rights and freedoms is a long-standing principle that informs Charter  analysis.  As the Court noted in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 326:

Before entering into a detailed discussion of the issues, it may be useful to note that this case exemplifies the rather obvious point that the rights and freedoms protected by the Charter  are not insular and discrete.... Rather, the Charter  protects a complex of interacting values, each more or less fundamental to the free and democratic society that is Canada (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136), and the particularization of rights and freedoms contained in the Charter  thus represents a somewhat artificial, if necessary and intrinsically worthwhile attempt to structure and focus the judicial exposition of such rights and freedoms. The necessity of structuring the discussion should not, however, lead us to overlook the importance of appreciating the manner in which the amplification of the content of each enunciated right and freedom imbues and informs our understanding of the value structure sought to be protected by the Charter  as a whole and, in particular, of the content of the other specific rights and freedoms it embodies.

Accordingly, the scope of one Charter  right does not circumscribe the scope of another.  As La Forest J., writing for himself, Sopinka and Gonthier JJ., articulated in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 320:

[A] person is not deprived of protection under a provision of the Charter  merely because protection may also be derived under another.  The rights overlap in defining Canadian society, and I see no reason for depriving a litigant of success because he has chosen one provision that legitimately appears to cover the matter of which he or she complains, rather than another.  That would often be the effect if the individual rights and freedoms were construed as discrete rather than overlapping.

59                               The right to run for elected office is a right protected by s. 3 in the case of legislatures and Parliament.  However, s. 3 does not “occupy the field” just because the right claimed in this case involves standing for election.  Where both ss. 3 and 2(b) are implicated, each right must be given effect: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 80, per Bastarache J.  A finding that s. 3 does not apply does not foreclose consideration of a claim under s. 2(b).  LeBel J.’s approach strays from the long-standing recognition of the overlapping relationship of various Charter  rights by using s. 3  to read down the scope of s. 2( b )  of the Charter . 

60                               Nevertheless, for the reasons I have given, I would not find a s. 2(b) violation in this case.  The consistent approach of this Court has been to characterize a claim such as the appellants’ as a claim to a platform for expression, which engages s. 2(b).  The platform approach strikes an appropriate balance by maintaining this Court’s traditional broad approach to freedom of expression,  without constitutionalizing a positive obligation on governments to provide platforms of expression except in unusual circumstances.  I have found that such unusual circumstances are not present in the appellants’ case.

E. Conclusion on Section 2(b)

61                               The appellants’ claim is one of access to a statutory platform.  It does not meet the criteria set out in Dunmore to warrant an exception to the general rule that freedom of expression under s. 2( b )  of the Charter  does not grant the right to a statutorily created platform for expression.  The appellants’ s. 2(b) claim must therefore be dismissed.

Question 2

If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

62                               As s. 2(b) is not infringed, there is no need to consider s. 1.

Question 3

Do ss. 1(2)(a) and 1(2)(b) of the School Trustee Statutes Amendment Act, 2002 infringe s. 15  of the Canadian Charter of Rights and Freedoms ?

63      The appellants submit that the LAEA Amendments violate s. 15(1)  of the Charter  by infringing their right to the equal protection and equal benefit of the law without discrimination on the alleged analogous ground of occupational status.  There is no need to describe here the steps in a s. 15(1) analysis, which were elaborated by Iacobucci J. in Law, at paras. 21-87 and summarized at para. 88, and have been reiterated in many cases since.  Applying this approach, I find that there is differential treatment of school employees under the LAEA Amendments, as compared with the comparator group identified by the appellants, which consists of municipal employees.  However, this differential treatment is not based on an enumerated or analogous ground. 

64                               In Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 13, McLachlin J. (as she then was) and Bastarache J. for the majority discussed how to identify analogous grounds:

What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 ‑‑ race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. . . . Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit‑based decision making.

They also stated at para. 8 that analogous grounds “stand as constant markers of suspect decision making or potential discrimination”.

65                               I cannot find any basis for identifying occupational status as an analogous ground on the evidence presented in this case.  Neither the occupational status of school employees nor that of teachers have been shown to be immutable or constructively immutable characteristics.  School employees cannot be characterized as a discrete and insular minority.  The appellants have not established that the occupational status of school employees is a constant marker of suspect decision making or potential discrimination. 

66                               In Delisle, Bastarache J. for the majority, at para. 44, held:

. . . the appellant has not established that the professional status or employment of RCMP members are analogous grounds. It is not a matter of functionally immutable characteristics in a context of labour market flexibility. A distinction based on employment does not identify, here, "a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality" (Corbiere, at para. 8), in view in particular of the status of police officers in society.

It has not been demonstrated that this reasoning with respect to RCMP officers, should not apply to teachers and other school employees.

67                               I agree with Costigan J.A. for the Court of Appeal that the appellants have failed to establish that the LAEA Amendments infringe s. 15(1).

Question 4

If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

68                               As s. 15 is not infringed, there is no need to consider s. 1.

VIII. CONCLUSION

69                               The appeal should be dismissed with costs.

The reasons of Bastarache, LeBel and Abella JJ. were delivered by

70                               LeBel J. — I have read the reasons of my colleagues Rothstein and Fish JJ.  While I agree with Rothstein J. that this appeal must be dismissed, I reach this conclusion for different reasons.  With respect, I cannot agree that this case engages the protection of freedom of expression in s. 2( b )  of the Canadian Charter of Rights and Freedoms , and in my view, the appellants’ claim must therefore fail.

71                               I need not summarize the facts of this case or details of the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23 (“LAEA Amendments”), and the legislative scheme at issue in this appeal.  They have been discussed thoroughly in my colleagues’ comprehensive reasons.

72                               As I see it, the appellants claim a right to participate in a political and managerial function in a democratically elected public body, namely a school board.  The question that must be asked is whether the constitutional guarantee of freedom of expression protects a right to run for office as a school trustee and, if elected, to take part in the management of the school board.  In my view it does not, despite the undeniable breadth of the guaranteed freedom.  It should be noted that no right is asserted under s. 3  of the Charter .

73                               This Court has adopted and employed a very expansive definition of expression.  In the seminal case on freedom of expression, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 968, the majority of the Court explained that “[a]ctivity is expressive if it attempts to convey meaning.”  That meaning is the content of expression, and s. 2(b) protects expressive activities from government-imposed restrictions on content.  The protection provided by the s. 2(b) guarantee is based on communication.  There must be a communicative purpose for an act to qualify as protected expression: P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 40‑8.

74                               In R. v. Keegstra, [1990] 3 S.C.R. 697, the majority of this Court rejected an approach under which the scope of s. 2(b) would be narrowed to accommodate the exercise of another Charter  right (see also B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, per Dickson C.J.).  Keegstra concerned hate speech, which can be considered “pure expression” despite its nature and low value.  Any attempt to restrict the scope of s. 2(b) in that case would have improperly targeted the content of expression.  It was therefore more appropriate to balance s. 2(b) against the guarantee of equality (s. 15) and the recognition of multiculturalism (s. 27) at the s. 1 stage.

75                               The situation in the case at bar is different.  The activities at issue are running for office and serving as a trustee on a school board.  No doubt some significant aspects of the role of a school trustee involve the communication of ideas about education and the operation of schools.  However, that content of expression is not affected by the LAEA Amendments.  At its foundation, the appellants’ claim concerns a democratic right that the Charter  does not protect.  These expressive activities belong in large part to the class of political expression that this Court has held to be deserving of the highest protection.  But political expression is not at issue in the present appeal.  The LAEA Amendments’ ban on school employees running for office and serving as school trustees does not prevent them from expressing views on any subject, let alone education.  What they are being deprived of is not freedom of expression but a claimed right to take part in the management of Alberta’s local education systems.  In my view, that is not what is contemplated by freedom of expression.

76                               Nearly everything people do creates opportunities for expression if “expression” is viewed expansively enough.  Other Charter rights and freedoms concern activities that could be characterized as expressive.  At some point, one must question whether the guarantee of freedom of expression should be viewed so broadly that every human activity with a communicative content might be swept under it.  The recourse to the notion of “platforms of expression” and the reliance on the sometimes delicate distinction between positive and negative rights evidence the concerns arising from such a broad definition of freedom of expression and application of s. 2( b )  of the Charter .

77                               Courts should neither hope nor seek to pigeonhole Charter  rights, which are usually broad and often overlapping.  Nevertheless, they are not formless and boundless.  Each of them has a part to play within the broad framework of the Charter .  In the end, it is necessary to determine what the claim is actually about and whether the asserted right is applicable to it.  Viewed realistically, the purpose of the claim in the instant case is to secure constitutional protection for a right to be elected to a management role in the local education system of the province of Alberta, but this falls outside the scope of the Charter  unless the equality rights of s. 15 are engaged.  On this last point, I agree that the appellants have not made out their claim of a breach of equality rights in the circumstances of this case.

78                               For these reasons, I would dismiss the appeal without costs.

The following are the reasons delivered by

Fish J. —

I

79                               This case concerns political expression and the issue is whether its deliberate suppression by Alberta violates s. 2( b )  of the Canadian Charter of Rights and Freedoms .  With respect for those who see the matter differently, I believe that it does.

80                               Section 2( b )  of the Charter  provides that everyone in Canada enjoys, as a fundamental freedom, “freedom of thought, belief, opinion and expression”. 

81                               In 2004, Alberta enacted legislation effectively prohibiting school employees from seeking election and holding office as trustees of any school board in the province.  The appellants are school employees and Alberta acknowledges that “some of the activities of school trustees [are of] an expressive nature”.  There is no dispute that seeking election to a school board and holding office as a school trustee necessarily involve expressive activities.

82                               Indeed, Alberta concedes from the outset that “seeking nomination for school trustee has expressive content” and rests its case, essentially, on the proposition that “freedom of expression under the Charter  does not require government to create statutory platforms for expression”.  Here, however, the government has removed the appellants from an existing platform of expression to which, like other qualified members of the public, they have long had access. 

83                               This was done, Alberta says, “for reasons of policy”.  But if the appellants’ removal from that platform substantially impedes their freedom of expression — as I believe it does — this limitation on the appellants’ constitutional rights must be shown by Alberta to be saved by s. 1  of the Charter  as a reasonable limit that “can be demonstrably justified in a free and democratic society”.  That, Alberta has not even attempted to do.

84                               In any event, the Court of Appeal held in this case that seeking election is a form of political expression ((2006), 57 Alta. L.R. (4th) 205, 2006 ABCA 137).  I agree with that conclusion.  And it follows inexorably, in my respectful view, that the impugned legislation restricts the appellants’ freedom to express themselves politically — a form of expression that is manifestly entitled to the highest degree of constitutional protection.

85                               A limitation on freedom of expression may in some cases, as in this one, curtail political or democratic rights as well.  Whether or not these political or democratic rights enjoy constitutional protection has no bearing on the protection afforded by s. 2(b).  Even if it were found that other provisions of the Charter  might address the appellants’ claim, and may even do so more directly, this cannot deprive them of a full analysis of that claim under s. 2(b).  Where there is an overlap between different constitutional rights, “[e]ach right is distinct and must be given effect”: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 80.  And where there is no overlap because only one of the rights is protected by the Charter , that right must likewise be given its full constitutional effect.

86                               Framed in terms of constitutional principle, the decisive question on this appeal is whether a legislature which sets up a system of democratically elected boards to administer a fundamental aspect of government activity may then exclude a certain category or group of otherwise qualified persons from serving on those boards, without any need to justify that exclusion under s. 1  of the Charter . 

87                               For the reasons that follow, I would answer that question in the negative and allow the appeal.

II

88                               Until 2004, school board employees could not serve in Alberta as trustees of the board that employed them but were otherwise free to run for election and to serve as school trustees.  In 2004, following a bitter labour dispute involving school board employees, Alberta enacted the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23 (“LAEA Amendments”).  In purpose and effect, the LAEA Amendments bar all school employees from seeking election or serving as school trustees for any school board in the province, and not just their own employer board. 

89                               The appellants claim that these restrictions on their ability to run for office and serve as school board trustees violate the freedom of expression to which they are constitutionally entitled in virtue of s. 2( b )  of the Charter . 

90                               As a matter of constitutional principle, the Court has traditionally defined  freedom of expression in broad terms and required the government to justify any infringement under s. 1.  See, e.g., Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; and Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569.

91                               In Libman, a unanimous Court reaffirmed this principled approach in these terms:

The Court favours a very broad interpretation of freedom of expression in order to extend the guarantee under the Canadian  Charter  to as many expressive activities as possible.  Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2( b )  of the Canadian  Charter  (Irwin Toy, supra, at p. 970; Zundel, supra, at p. 753). [para. 31]

92                               The Court has held in only two cases that exclusion from a platform for expression created by the government did not violate s. 2(b):  Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627 (“NWAC”).  Neither of these decisions is of particular assistance to Alberta in this case.  Nor is Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, with which I shall deal as well.

93                               Mr. Haig “fell between the cracks” of a provincial referendum conducted by Quebec and a federal referendum conducted in the nine other provinces.  Mr. Haig, who had recently moved from Ontario to Quebec, lacked the residency requirement of both referenda and was therefore unable to vote in either one.  The Court found that voting is an expressive activity, but nonetheless dismissed Mr. Haig’s appeal on the ground that s. 2( b )  of the Charter  does not impose on the government “any positive obligation to consult its citizens through the particular mechanism of a referendum [or] confer upon all citizens the right to express their opinions in a referendum” (p. 1041).  Voting in a referendum, albeit an expressive activity, therefore did not fall within the scope of s. 2(b). 

94                               Unlike this case, Haig involved a referendum for information purposes in which a small number of people were incidentally prevented from voting on a single occasion because the residency requirements of the two referenda did not mirror one another.  They were unlikely ever to be affected again in this way, even if the impugned residency requirements remained unchanged.  And, again unlike this case, there was no indication that the government had intentionally prevented Mr. Haig or anyone else from engaging in an expressive activity — in that case, voting in a single referendum. 

95                               In the case at bar, by contrast, school board employees, who had recently been involved in a bitter labour dispute with the government, have been permanently and deliberately barred from participation in the governance of school boards throughout the province.  This systematic exclusion of otherwise qualified persons from participation in an important institution of local governance raises a far greater concern for protecting freedom of expression than a one-time, incidental inability to vote in an informational referendum.

96                               In NWAC, the Court held that s. 2(b) did not require the government to provide the Native Women’s Association of Canada funding or invite their participation in constitutional discussions.  McLachlin J. (as she then was), concurring in the result, found that “the freedom of governments to choose and fund their advisors on matters of policy is not constrained by the Canadian Charter of Rights and Freedoms ” (p. 668) and that it was therefore unnecessary to consider whether the failure to fund NWAC violated s. 2(b). 

97                               No such active support or consultation is sought in this case: The appellants simply ask us instead to set aside a statutory bar adopted by Alberta to deprive them of their longstanding right to express themselves politically by seeking and holding office as school board trustees. 

98                               Again, allowing this appeal would in no way burden the government with any obligation to fund or consult a particular group or association, or to establish for anyone a previously non-existent platform of expression.  It would merely restore to the appellants access to a generally available platform of expression, unless of course their exclusion from it were found to be justified under s. 1  of the Charter .

III

99                               I turn now to Dunmore, which concerned the freedom of association protected by s. 2( d )  of the Charter .  As I have demonstrated, the freedom of expression guaranteed by s. 2(b), which concerns us here, has until now been broadly interpreted by the Court as a matter of principle .  Prior to Dunmore, this was not seen to be the case for s. 2(d). In the unforgiving words of one commentator,

the pattern was set in 1987, when a majority of the Supreme Court gave section 2(d) what can only be described as a deadening interpretation.  In concluding that associational freedom is an individual right and does not protect collective bargaining or the right to strike, the Labour Trilogy relegated the guarantee to irrelevance. 

(J. B. Cameron, “The ‘Second Labour Trilogy’: A Comment on R. v. Advance Cutting, Dunmore v. Ontario, and R.W.D.S.U. v. Pepsi-Cola”, (2002), 16 S.C.L.R. (2d) 67, at p. 69)

100                           I would find it most ironic for the Court’s generous interpretation of freedom of association under s. 2(d) in Dunmore to now be invoked here for the purpose of narrowing the Court’s traditionally broad interpretation of the historically and conceptually distinct freedom of expression guaranteed by s. 2(b).  And in my respectful view we are not bound by the language of Dunmore to do so: Even if we characterize the appellants’ claim as one of underinclusion, as Rothstein J. does, it would meet the Dunmore criteria.

101                           In Dunmore the Court identified three considerations which circumscribe claims that an underinclusive statute violates s. 2:

1.        “claims of underinclusion should be grounded in fundamental Charter  freedoms rather than in access to a particular statutory regime” (para. 24);

2.        “a proper evidentiary foundation must be provided before creating a positive obligation under the Charter ” (para. 25); and

3.        “the state [must be] accountable for any inability to exercise a fundamental freedom” (para. 26).

102                           The Court distinguished Haig and NWAC on the ground that the claimants in those cases had been unable to show that “the fundamental freedom at issue, as opposed to merely their requested statutory entitlement, was impossible to exercise” (para. 25).  In Dunmore, by contrast, the agricultural worker claimants were not simply seeking inclusion in the Labour Relations Act, 1995, S.O. 1995, c. 1, but protection of their s. 2(d) freedom of association.

103                           The criteria identified in Dunmore should not be applied narrowly —  particularly with respect to freedom of expression.  Unlike this Court’s decisions in Haig and NWAC, a narrow interpretation of Dunmore would allow legislatures, limited only by their obligations under s. 15, to systematically deny groups access to statutory platforms of expression otherwise available to the public at large.  Rather, Dunmore should be viewed in light of this Court’s practice of construing freedom of expression broadly and considering limits on expressive activity at the justification stage of the analysis.  This is even more important where, as here, we are concerned with political expression associated with participation in an important democratic institution.

104                           In his careful and extensive reasons, Justice Rothstein finds that this case fails to meet the first two Dunmore criteria since, in his view, the appellants are merely seeking access to a particular statutory regime, and have not established substantial interference with a fundamental freedom.  In Dunmore, Bastarache J. explained the relevant difference this way: In order to succeed, he said, a claimant must seek “more than a particular channel for exercising his or her fundamental freedoms” and must “demonstrate that exclusion from a statutory regime permits a substantial interference with the exercise of protected s. 2(d) activity” (para. 25 (emphasis in original)). 

105                           In my view, the appellants’ claim is grounded in the fundamental, constitutionally protected freedom to express oneself  meaningfully on matters related to education.  This freedom clearly exists independently of any statutory enactment.  By excluding school employees from the ability to run for and serve as trustees, Alberta has substantially interfered with their ability to exercise this freedom.

106                           Justice Rothstein finds that the LAEA Amendments deprive the appellants of only one particular channel of expression, leaving open a range of alternative means for them to express themselves on education-related issues.  School employees remain free, for example, to participate in school board meetings, lobby trustees, sit on school councils, write letters to newspapers, give media interviews, and write to members of the legislature and other public officials. 

107                           Seeking and holding office as a school trustee, however, is a uniquely effective means of expressing one’s views on education policy.  It is cold comfort indeed for  school employees, who are barred from themselves serving as trustees, to be told that they nonetheless remain free to talk to those who can, or to write letters to their local newspapers.  The voices of school employees are simply unlikely to be heard over the din of those who actually run for office and serve if elected.

108                           While diminished effectiveness in conveying a message may not always engage s. 2(b), the difference between writing a letter to a trustee and serving as a trustee is not simply one of degree.  Active participation in an election and service as a trustee are qualitatively different means of expression than simply shouting from the sidelines.  Section 2(b) is not so restricted as to protect only the latter.  As McLachlin C.J. and Major J., dissenting in part, stated in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33, at para. 20:

The ability to speak in one’s own home or on a remote street corner does not fulfill the objective of the guarantee of freedom of expression, which is that each citizen be afforded the opportunity to present her views for public consumption and attempt to persuade her fellow citizens. Pell J.’s observation could not be more apt: “[s]peech without effective communication is not speech but an idle monologue in the wilderness”; see United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), at p. 415.

109                           By prohibiting school employees from participating in school board elections and governance, Alberta has done more than restrict a “particular channel” of expression.  It has created a system and process grounded in the democratic election of school board trustees.  That process has naturally become the focus of public debate regarding education policy.  By proceeding then to exclude school employees from running for office, Alberta has “substantially interfered” with their freedom of expression: It has denied them access to the unique platform upon which debate on local education policy is meant mainly and effectively to proceed. 

110                           Representative democracy is fundamental to our system of government.  Where a legislature establishes a universal and democratic system of local governance, and then effectively prohibits the participation in that system of a particular group of otherwise qualified citizens, the state must be required to justify that prohibition.

111                           It has not done so in this case.

IV

112                           I agree with the trial judge that this violation cannot be justified under s. 1. 

113                           In this Court, Alberta faces insurmountable obstacles in respect of that finding.  First, because it did not appeal the trial judge’s decision on this issue; second, because Alberta, understandably in that light, has made no submissions on the issue in this Court; and finally, because Alberta, on the record as we have it, plainly failed to satisfy the four-pronged test laid down in R. v. Oakes, [1986] 1 S.C.R. 103.

114                           Alberta asserts as a pressing and substantial concern — the first requirement under Oakes — the need to prevent the conflicts of interest inherent in permitting school trustees to make decisions that affect school employees, particularly with respect to collective bargaining.

115                           The prevention of conflicts of interest is doubtless a matter of substantial public importance.  And while the assertion by the government of a pressing and substantial concern will normally require little or no evidentiary support, it cannot pass muster where, as in this case, the record demonstrates that the concern asserted is in fact neither pressing nor substantial.

116                           To begin with, school board employees were already prohibited from serving as school trustees for their employer board even before the LAEA Amendments were adopted.  Yet, of the 420 school trustees throughout the province, only three were school board employees, and just one other took steps to seek office.  Accordingly, fewer than 1 percent of Alberta’s school trustees could be exposed, on Alberta’s view of the matter, to potential conflicts of interest. 

117                           Second, the appellants’ uncontradicted evidence demonstrated that potential conflicts arose only two or three times a year and have been adequately dealt with by recusals.

118                           Third, the trial judge found that Alberta presented no reliable evidence on either the frequency of conflicts of interest, or of their impact on decision-making. 

119                           In short, on the first branch of the Oakes test, the trial judge was entitled to find, as she did, that Alberta’s assertion of a pressing and substantial concern could not succeed and nothing before this Court permits of a different conclusion.

120                           But even if Alberta’s declared objective were to be considered pressing and substantial, the LAEA Amendments would clearly fail the minimum impairment branch of the test laid down in Oakes.  Legislatures are not bound to adopt the “least impairing” means of furthering pressing and substantial objectives.  They cannot, however, interfere with or limit constitutionally protected rights or freedoms in a manner that plainly overshoots the mark.  And, as already mentioned, Alberta presented no evidence that the previous legislative scheme, which had been in place for over 40 years, was in any way inadequate to address Alberta’s stated concerns. 

121                           Finally, I note that Alberta permits municipal employees to seek election to the councils of municipalities other than their employer, and no evidence was adduced to explain why they can or should be treated differently in this respect.  Nor has any of the parties suggested that holding office as a school trustee is more “managerial” than serving as a municipal councillor and subject for that reason to different considerations under either s. 2( b )  or s. 1  of the Charter .

V

122                           With respect for those who see the matter differently, I am therefore persuaded that s. 1 of the LAEA Amendments, which violates the freedom of expression afforded Alberta school employees by s. 2( b )  of the Charter , is not justified under s. 1  of the Charter .

123                           As stated at the outset, I would for all of these reasons allow the appeal with costs, and declare that s. 1 of the LAEA Amendments is of no force and effect. 

APPENDIX

RELEVANT STATUTORY PROVISIONS

Prior to the amendments at issue in this appeal, the relevant ineligibility provisions of the Local Authorities Election Act, R.S.A. 2000, c. L-21, were as follows:

22(1)  A person is not eligible to be nominated as a candidate in any election under this Act if on nomination day

. . .

(b)       the person is an employee of the local jurisdiction for which the election is to be held unless the person is on a leave of absence granted under this section;

. . .

(7)  An employee who has been granted a leave of absence is subject to the same conditions that apply to taking a leave of absence without pay for any other purpose.

(8)  If an employee who has been granted a leave of absence is not elected, the employee may return to work, in the position the employee had before the leave commenced, on the 5th day after election day or, if the 5th day is not a working day, on the first working day after the 5th day.

(9)  If an employee who has been granted a leave of absence is declared elected, the employee is deemed to have resigned that position as an employee the day the employee takes the official oath of office as an elected official. . . .

The provisions of the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, relevant in this appeal provide:

1(1)  The Local Authorities Election Act is amended by this section.

(2)  Section 22 is amended

(a)       by adding the following after subsection (1):

(1.1)  A person is not eligible to be nominated as a candidate for election as a trustee of a school board if on nomination day the person is employed by

(a)  a school district or division,

(b)  a charter school, or

(c)  a private school,

in Alberta unless the person is on a leave of absence granted under this section.

(b)       in subsection (3) by striking out “Subsection (1)(c) to (f) do not apply” and substituting “Subsection (1)(b) to (f) do not apply”;

(c)       by adding the following after subsection (5):

(5.1)  An employee referred to in subsection (1.1) who wishes to be nominated as a candidate for election as a trustee of a school board may apply to his or her employer for a leave of absence without pay on or after July 1 in the year of an election but before the employee's last working day prior to nomination day.

(d)       by adding the following after subsection (6):

(6.1)  A school district or division, a charter school or a private school shall grant every application it receives under subsection (5.1).

After the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, the relevant provisions of the LAEA as amended read:

22 ...

(1.1) A person is not eligible to be nominated as a candidate for election as a trustee of a school board if on nomination day the person is employed by

(a) a school district or division,

(b) a charter school, or

(c) a private school,

in Alberta unless the person is on a leave of absence granted under this section.

. . .

(5.1) An employee referred to in subsection (1.1) who wishes to be nominated as a candidate for election as a trustee of a school board may apply to his or her employer for a leave of absence without pay on or after July 1 in the year of an election but before the employee's last working day prior to nomination day.

. . .

(6.1) A school district or division, a charter school or a private school shall grant every application it receives under subsection (5.1).

. . .

(8) If an employee who has been granted a leave of absence is not elected, the employee may return to work, in the position the employee had before the leave commenced, on the 5th day after election day or, if the 5th day is not a working day, on the first working day after the 5th day.

(9) If an employee who has been granted a leave of absence is declared elected, the employee is deemed to have resigned that position as an employee the day the employee takes the official oath of office as an elected official. [Amendments in bold]                                                      

Appeal dismissed, Fish J. dissenting.

Solicitors for the appellants:  Field, Edmonton.

Solicitor for the respondent:  Attorney General of Alberta, Edmonton.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of New Brunswick:  Attorney General of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General of British Columbia:  Ministry of the Attorney General, Vancouver.

Solicitor for the intervener the Attorney General of Prince Edward Island:  Attorney General of Prince Edward Island, Charlottetown.

Solicitors for the intervener the Canadian Teachers’ Federation:  Nelligan O’Brien Payne, Ottawa.

Solicitors for the intervener the Alberta Federation of Labour:  Blair Chahley Seveny, Edmonton.

Solicitors for the intervener the Public School Boards’ Association of Alberta:  Dale Gibson, Edmonton.