In Baier v. Alberta the Supreme Court of Canada considered the validity of Alberta legislation, enacted in 2004, which established a province-wide restriction on school employees serving as school trustees on any Alberta school board. The majority of the Court upheld the validity of this statute, finding that while serving as a school trustee is an expressive activity, the province had no obligation to provide teachers with a “statutory platform for expression” and there was, the refore, no infringement of Charter section 2(b). This paper argues that the majority erred in seeing this as a freedom of expression case at all. The impugned legislation did not disqualify schoolteachers from speaking; they were free to express their views and opinions on any issues relating to education whether or not they were qualified or elected as school board trustees. What the teachers sought was neither a freedom to express their opinions nor a platform of expression, but a right to participate in the management of the schools, an activity that is not guaranteed by Charter section 2(b). While the “statutory platform” analysis may be helpful in the context of an activity that is exclusively or primarily expressive, such as voting in a referendum, it is ill fitted in the context of an activity — such as working in a particular job — which is only incidentally expressive. The paper also discusses the statutory role of school trustees as senior management of school boards and the special statutory regime that governs teachers’ collective bargaining. The Alberta restriction at issue supports the important principle of labour policy that workers and management should be free from interference from one another.
Charney, Robert E..
"The Shaky Foundation of “Statutory Platforms”: A Comment on Baier v. Alberta."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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