The Comparative Roles of Courts and Administrative Agencies: Applying Constitutional Principles of Diversity in Canada

Wayne MacKay

Abstract


As Canada becomes a more diverse and multicultural country the number of challenges of reflecting this diversity in our society has grown. This is particularly true in the post 9/11 era of counter terrorism, where national security is often used to trump human rights. The position of Muslims in Canadian society and the scope of the duty of reasonable accommodation have become major Canadian issues that have sparked some interesting debates in Quebec, and elsewhere, about the wearing of the hijab and other religious symbols. The Multani decision from the Supreme Court of Canada in 2006 raised the issue of bringing a Sikh dagger (kirpan) to the classroom and the Supreme Court came down on the side of multiculturalism and human rights. There are also pressing concerns about school violence that add a further dimension to the Multani case. The broader issues of human rights in education have also been raised in a series of Supreme Court cases such as Malcolm Ross, Trinity Western University and Chamberlain v. Surrey. All of these cases raise the issue of the comparative roles of school boards, human rights commissions (and tribunals) and the courts, including the appropriate standard of judicial review of administrative decisions. There are also important questions about the extent to which administrative agencies such as school boards and human rights tribunals should consider the Charter of Rights and human rights codes as well as other aspects of the Constitution. The intersection of Administrative law and Constitutional law is a complex and often legalistic area that can challenge seasoned lawyers and academics alike. My article will explore these difficult issues in respect to diversity policies in schools, as a case study in the role of courts and tribunals in promoting human rights and diversity in Canada.

Keywords


Constitutional Law; Human Rights and Discrimination; Administrative Law

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