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THE UNIVERSITY OF BRITISH COLUMBIA

PETER A. ALLARI SCHOOL OF LAW

FINAL EXAMINATION - APRIL 2017

LAW 201.003
Canadian Constitutional Law
Professors Jonas-Sébastien Beaudry and Darlene Johnston

TOTAL MARKS: 100

TIME ALLOWED: 3 HOURS PLUS 30 MINUTES READING TIME

NOTES:

1. This is an open book examination. Assi2ned written materials are

permitted only. No Constitutional Law textbooks written by
Professor Peter Hogg or anyone else are permitted in the exam room.
All electronic devices (other than those required for the use of
ExamSoft) are forbidden.

2. This examination consists of two parts. The questions in Part 1

(Charter) were set and will be marked by Professor Beaudry.

3. The question in Part 2 (Aboriginal and Treaty Rights) was set and will
be marked by Professor Johnston.

4. Questions 1 and 2 are not of equal weight. Question 1 is worth 2/3 of

your mark out of 100. Question 2 is worth 1/3 of your mark out of
100. You should allocate your time accordingly.
LAW 201, Section 3 Page 2/9

5. State clearly any facts you assume in answering the questions.

Questions raise issues that do not have one ‘right’ answer. Where
appropriate, you should identify and discuss fully the arguments that
might be made on both sides of an issue, and give some sense of the
relative strength of the arguments.

6. Full citation of cases is not necessary. You may refer to cases in short
form.

7. If you write your exam by hand, please write legibly on alternate lines
and on only one side of each page.
LAW 201, Section 3 Page 3/9

PART 1
(Charter)

67 Marks
***

This Part has three questions. You must answer all of them.

A suggested working time for each question is indicated on the examination paper.

***

Questions 1 and 2 relate to the following fact pattern:

Atticus College is a liberal arts college located in Vancouver, British Columbia. It was
incorporated by the BC Act Incorporating Atticus College, which provides the following:

“5. The affairs of the College shall be managed by a Board of Governors (“Board”)
consisting of no fewer than seven nor more than fifteen persons all of whom are
appointed and removable at pleasure by the Lieutenant Governor-in-Council.

6. The Board may create disciplinary and academic codes of conduct and regulations
governing student life. All such codes and regulations must be submitted to the Minister
of Education (“Minister”) for approval.

7. The Minister will be deemed to have approved the codes and regulations if the
Minister does not signify approval or disapproval within 10 days.

8. The Board may enact hiring policies, dictate interactions with staffs and unions, and
take other necessary measures to handle internal management of the institution and
physical maintenance of the facilities. Such decisions need not be submitted to the
Minister for approval.

9. The College’s annual budget must be submitted to the Minister for approval and will
be deemed to not have been approved if, within 10 days, the Minister falls to reply.”

The Board enacted the Atticus College ‘s Academic Code of Conduct [hereinafter Code] which
applies to all students of Atticus College. The Conduct provides the following:

Preamble

This Academic Code of Conduct is designed to assist in the development of a supportive

and productive learning environment. ft is both a description of the University’s ethical
expectations of students, as well as a guarantee of students’ rights and responsibilities as
members of a learning community. All students entering Atticus College are expected to
maintain high standards of academic honesty and integrity.
LAW 201, Section 3 Page 4/9

Section 2 - Academic Misconduct

Academic misconduct is conduct by which a student misrepresents their academic

accomplishments, or impedes other students’ opportunities of being judged fairly for
their academic work.

Section 3 - Violations of This Code

It is a violation of this Code to be dishonest or deceptive in the performance of academic

work in or out of the classroom. Such a violation includes:
A Cheating (...)
-

B Plagiarism (...)
-

C Unauthorized communication during examinations (...)

-

D Knowingly allowing another student to represent your work as his or her own.
-

(...)
Section 4 Conduct and Dress Code During Examinations
-

(1) In order to ensure enforcement of ethical expectations and avoid academic

misconduct, (...) students will not be authorized to sit an examination if they wear any
piece of clothing on their head, covering either their ears or part of their face.
(2) Students can be excused from the requirement in subsection (1) by submitting a
request, in writing, to the Accommodation and Equity Officer [hereinafter Officer] at
Atticus College. The Officer’s decision to excuse students from the dress code specified
in subsection (1) will be based on considerations of equity and fairness, and the integrity
of the examination system as a whole.
(3) The Decision of the Officer can be appealed to the College’s Board of Governors
[hereinafter Board] within 15 days.”

***

Adeline Jackson converted to Islam in 2015 and started to wear a niqab in school in March 2016.
(A niqab is a veil that some Muslim women wear for religious reasons. More specifically, a
niqab is a veil covering the whole head, including the face but excepting the eyes).

Tn April 2016, Adeline Jackson’s math instructor warned her that she would not be allowed in
the examination room in May wearing her Niqab. She was informed that she would have to ask
the Officer to be excused from abiding by the dress code.

The Officer received Ms. Jackson’s request in April to wear a niqab during the May 2016
examination period. The Officer rejected it. Ms. Jackson appealed this decision to the Board,
which upheld the Officer’s decision. Consequently, Ms. Jackson was not able to write her exams
in the regular exam period and was forced to complete the courses by way of take-home exams
over the summer. This prevented her from working full-time during the summer.
LAW 201, Section 3 Page 5/9

Ms. Jackson filed at the British Columbia Supreme Court a motion for a declaratory judgment to
the effect that the Code unjustifiably infringes her rights to equality and freedom of religion and
is therefore constitutionally invalid.

***

Ms. Jackson argues that section 4 of the Code prevents students from wearing a variety of
clothing mandated by some interpretations of Islamic faith.

Ms. Jackson claims that the dress code discriminates against women based on their cultural and
religious beliefs. She further claims that many women who wear headscarves and veils for
religious reasons happily show their faces to government officials, employers, or school
employees who would wish to verify their identity for relevant reasons. A complete ban of such
clothing in the context of examination is an excessive measure.

During the pre-trial stage of the discovery process, the plaintiff found letters written by students’
parents to the Board insisting that the school take concrete measures to ensure the “secular look”,
and in some letters the “Christian status”, of the College. The Officer revealed, during discovery,
that he learned through personal conversations with members of the Board that those letters
influenced the Board’s decision to amend the Code and add the section 4 Dress Code.

Although she only started wearing the niqab recently, “to follow the path of the Prophet’s
wives”, Ms. Jackson explains that her conversion is serious. She reports that it is humiliating for
women recently converted to Islam (like herself) to be told they are disingenuous or that that
they do not respect women’s equality because of their religious choice.

***

The College argues that section 4 of the Code is neutral and targets articles of clothing rather
than religious practices. The goal of this provision is to prevent students from cheating either by
(i) wearing clothes (such as a cap or a beanie) allowing them to use hidden auditory devices,
such as a bluetooth player connected to their cellular phone ; or (ii) hiding their face in a way
that prevents invigilators from confirming the identity of the exam-taker.

The College relies on the testimony by a member of the Board of Governors to support its claim
that the role of the letters written by parents did not influence the Board’s decision to enact
section 4 of the Code. The College also argued that, should the Court find that the Board
amended the Code in response to the letters, the Code remains nonetheless neutral. The Code
need not be interpreted as a means to curb the wearing of religious clothes within the College. It
can now be read as pursuing the non-discriminatory purpose of ensuring academic honesty.

The College also argues that religious clothing such as veils in an educational context is
oppressive to women so that banning them can be supported on the basis of gender equality.

Additionally, the College emphasizes that subsections 4(2) and 4(3) allow for discretionary
exceptions on grounds on equity and fairness. Although the Officer has to date not granted any
LAW 201, Section 3 Page 6/9

request on the basis of religion, he has granted two exceptions on the basis of disability. Nothing,
in principle, prevents the Officer from granting a similar exception to Muslim women in the
situation of Ms. Jackson in the future. The Code itself is therefore unflawed.

The College argues that these two subsections are the only way in which the College can achieve
its goal to maintain the integrity of the examination system. The College’s view is that the policy
concerning head clothing would not properly achieve its goals if exceptions were routinely or
systematically made on the basis of religious grounds. Maintaining the integrity of the collegial
examination system requires a universally applicable rule. Making exceptions risks failing to
catch cheating, as well as affecting honest students (as the grades are bell-curved) and the
College’s reputation.

The College’s position is that Ms. Jackson should assume the burden of her choices. The College
also casts doubt on the quality and authenticity of her religious beliefs for a few reasons. First,
the vast majority of Muslim women in the city do not wear the niqab the majority of the
-

Muslim community in Vancouver do not see the veil as necessary to honour their religious
commitment. Second, Ms. Jackson only chose to wear the niqab over the last few months, and
nobody in her family is Muslim. The College states that her “conversion” lacks the kind of
seriousness that would justify threatening the integrity of the examination system.

Finally, the College argues that, even if the plaintiff were to be considered as sincere in her
belief, she has not shown the Court that being treated differently from other exam-takers on the
basis of her clothing amounts to “substantive inequality” or discrimination in a way that would
infringe her Charter rights. Indeed, the Code only requires Ms. Jackson to take her niqab off
during the exams.

Question 1
12 Marks (recommended time: 25 minutes)

Does the Charter of Rights and Freedoms apply to the College’s Code of Conduct?

Question 2
35 Marks (recommended time: 50 minutes)

Adeline Jackson claims that s. 4 of the Code of Conduct infringes her right to freedom of religion
under s. 2(a) and her equality rights under s. 15(1) of the
Canadian Charter of Rights and Freedoms.

(i) Did section 4 of the Code of Conduct infringe s. 2(b) and s. 15(1) of the Charter of
Rights and Freedoms?
(ii) Discuss whether s. 4 of the Code of Conduct is a “limit prescribed by law”, in the
sense of section 1 of the Charter.
(iii) Assuming that Ms. Jackson’s right to freedom of religion and equality rights were
limited by the Code of Conduct, can this limit be justified under s. 1 of the Charter?
LAW 201, Section 3 Page 7/9

Question 3
20 Marks (recommended time: 45 minutes)

Consider the following statement:

“Preventing harm to others is the main justification to limit freedom of expression in Canada.”

Do you agree? Why or why not? What kind(s) of “harm” might this statement be referring to?

In formulating an answer, you should consider all of the cases concerning freedom of expression
covered in this course.

END OF CHARTER SECTION OF EXAMINATION

LAW 201, Section 3 Page 8/9

PART 2
(Aboriginal and Treaty Rights)

33 Marks (recommended time: 60 minutes)

The Eagle First Nation (EFN) is located on the northern tip of Vancouver Island near the main
migration route for sockeye salmon. According to EFN oral tradition, their ancestors settled in
this place thousands of years ago because the abundance of salmon provided them with
sustenance and wealth. Ever vigilant of maintaining control of their fisheries, they used their war
canoes to repel the first European explorers who tried to land in their territory in 1793. By 1851,
however, they were no longer able to prevent incursions by settlers. As a result, the EFN chiefs
decided to negotiate a treaty with James Douglas, the soon-to-be Governor of Vancouver Island.
In exchange for a nominal sum of money, the chiefs consented to surrender their lands “entirely
and for ever”. The surrender was subject to the following conditions:

that our village sites and enclosed fields are to be kept for own use, for the use of our
children, and for those who may follow after us and the lands shall be properly surveyed
hereafter. It is understood, however, that the land itself, with these small exceptions,
becomes the entire property of the white people for ever; it is also understood that we are
at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.

For decades following the treaty, there was no interference with EFN fishing rights. Beginning in
the 1990’s, under the authority of the Fisheries Act, the federal Department of Fisheries and
Oceans (DFO) imposed a communal commercial fishing licencing regime upon coastal First
Nations. The EFN licence specified the time, place and amount of sockeye salmon that they
could harvest. Although they were not consulted on this regulatory change, the EFN did not
challenge the licence because their harvest levels were not substantially reduced. Recently,
however, sockeye salmon stocks have collapsed. In response, DFO has imposed a complete
moratorium on the harvest of sockeye salmon for commercial purposes. By closing the fishery,
the DFO has deprived EFN members of an important source of livelihood. When the EFN
complained about the closure, DFO refused to permit them even a very limited commercial
harvest.

At the same time as it imposed the moratorium on the sockeye salmon commercial fishery, DFO
issued a multi-year licence to the Beta Aquaculture Company (BAC) for farming Altantic
salmon in net pens located directly off-shore of EFN’s village. A public notice of the proposed
licence was posted on DFO’s website for 30 days and a copy of the notice was emailed to the
EFN Band Office. This email, however, never came to the attention of EFN authorities. Two
weeks ago the EFN became aware of the BAC fish farm when installation of the pens began.
They sent a letter to the Minister of Fisheries and Oceans expressing their concern that the
pollution and diseases associated with fish farming would negatively impact the already
precarious health of the sockeye salmon stocks.

The EFN is seeking your advice on these matters. They want to know whether it is possible to
get the moratorium on their commercial salmon fishery lifted. They also want to know whether
they can stop the operation of the BAC fish farm. In providing your advice, specify any
assumptions that you are making and explain why you are making them.
LAW 201, Section 3 Page 9/9

END OF EXAMINATION