Reasonable Doubt: There is no constitutional right to snowboard

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      I remember when snowboarding was just hitting the slopes. People were still skiing on 210-centimetre skis that were six centimetres wide in neon ski suits.

      Before even the Whiskey films came out, snowboarding imported the counterculture elements of Z-Town and skateboarding to the slopes and the controversy was born. Jump turns, shot-skis, and electric guitar riffs gave way to jibbing, rye-chugging, and punk rock. Snowboarders were banned from many ski hills until it began to catch on and resorts realized how much money they could make because snowboarding was cool and skiing was not (until JP Auclair came along). The great controversy on any slopes quickly became skiers vs. snowboarders. You’d get to the hill and someone would take out a snowboard—immediately, people would wonder how the group was going to get along with this person along for the day.

      Fast-forward to 2015 and the hero powder that Utah, and Alta Ski Area in particular, are renowned for.

      Alta is one of three skier-only resorts in the U.S. They do not allow snowboarders to ride their chairlifts and this has made them a target for snowboarders wanting to access the resort’s legendary lines.

      Alta operates on public lands through a long-term lease. In the U.S., the 14th Amendment is the closest parallel to section 15 of our Charter. Both protect people from government discrimination based on personal characteristics, such as race, gender, religion, and sexual orientation.

      Enter Wasatch Equality with their slogan “No Borders – Share the Shred Alta”. They sued Alta Ski Area and the Utah government, alleging discrimination contrary to the 14th Amendment in not letting snowboarders ride the chairlifts at Alta.

      Both the 14th Amendment and the Charter apply only to government actions. Alta is not a government body, but it cannot be denied that they operate by virtue of their lease of public lands, which draws into question whether the government is condoning discrimination.

      A judge dismissed the snowboarders’ lawsuit on the basis that there was no discrimination by the government and, even if there was, that there was no discrimination in the sense in which the U.S. constitution intended to protect against.

      The constitutional law is essentially the same in Canada on that issue, although I question whether Canadian courts would allow government land to be leased for discriminatory purposes (assuming of course, that Alta illegally discriminates). However, in B.C., like every other province, we have a human rights code that governs the conduct of private actors and offers a much simpler, more accessible forum for adjudication than the Charter.

      I get a lot of phone calls and meet many people who tell me that their human rights have been infringed. I usually agree with them. But, that does not necessarily mean there is anything illegal going on. Not every human rights breach is a legal issue, for better or worse.

      Suppose a B.C. ski resort banned snowboarding—is there a human rights lawsuit?

      Assuming the ski resort is a private entity, there would be no Charter claim.

      There also would not be a human rights lawsuit. In B.C., while section 8 of the Human Rights Code prohibits discrimination in accessing facilities customarily available to the public, it only does so in specific instances, including race, colour, ancestry, marital or family status, physical disability, sexual orientation, or age.

      It is decidedly narrower that the protection people get in other contexts, such as tenancy or employment, where such things as political beliefs and lawful source of income are also protected grounds of discrimination.

      So, unless you can successfully argue that snowboarding is integral to one’s ancestry, religion, sexual orientation, or the like, then your snowboarding ways will not attract the Human Rights Code’s protection.

      The point here is about more than just snowboarding—many people expect, perhaps not unreasonably, that the Code or the law will protect them from all discrimination and indeed provide for them by requiring government or other person to ensure access to housing, food, and education.

      One simple example is a tenant who called me to tell me that her “human right to water” was being denied. Putting aside that her landlord had a plumbing problem, the only way her human right to water could be infringed under the Code (as opposed to a contractual right in return for paying rent) is if someone was turning off her water due to her race, religion, sexual orientation, or the like.

      Similar to misconceptions around the specific, narrow protection afforded by the Code, many people expect that the law obliges others, government in particular, to provide access to certain rights.

      While I certainly endorse the notion of positive rights in our law (e.g. the government having an obligation to ensure housing, not simply an obligation to not take it away), the fact is that our law does not, at least currently. While some thought the law might be moving in that direction, given past rulings of the Supreme Court of Canada that did not entirely close the door on the issue, we are not there yet. On June 25, the Supreme Court of Canada put off such legal progression for another generation. In that decision, the high court refused to hear a Charter case arguing that the federal and Ontario governments’ failure to develop a national housing strategy was unconstitutional.

      The message appears clear: the courts are not the place for social policy adjudication. This parallel’s former chief justice Lance Finch’s retirement speech that the courts are “not designed nor equipped” to address such issues. However, the place where policy meets law is in constitutional or quasi-constitutional legislation, like the Charter and the Code. Although some things, like Insite, SALOME, and physician-assisted death appear at first glance to be social policy issues, the courts have been clear that social policy must give way, or at least be balanced against, certain minimum constitutional standards of liberty, freedom, and security. There may come a day when the law imposes positive obligations on the government. It is probably not close, but it will come sooner than the constitutional right to snowboard.

      Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Comments

      5 Comments

      Anders Garvin

      Jul 3, 2015 at 11:59am

      Will the government still allow us to breath? I just don't want to be breathing in a non-breathing zone because it says on a piece of paper that I can't. Heaven forbid a law is broken.

      YadaYada

      Jul 3, 2015 at 12:12pm

      Silly comments like my rights are being violated because I can't snowboard are a good example of why the whole human rights tribunal crap have gotten out of hand. There's one line in this article that everyone should remember - "the courts are not the place for social policy adjudication". Social policy changes when the majority gets tired of the status quo. It can not be forced upon you by leftists who think they know what is good for the world.

      It's become a joke now...

      Jul 3, 2015 at 12:20pm

      No matter where I turn, I'm watching or reading about someone who is having their 'human rights' violated. It's become a 'knee jerk' action now. There use to be a time, when you could tell people to 'be quite' or 'you're an idiot, get back to making my hamburger', without landing in court over a human rights violation. It's only going to get worse.

      Well...

      Jul 3, 2015 at 3:51pm

      It's likely that charter rights should apply strictly to all corporations because corporations are discharging a governmental economic policy that could not exist without government license. Corporations have no right to use courts except by grant of Government. They have no power of holding lands without grant of Government. The idea that the Charter doesn't strictly apply to corporate activities is silly---basically it is a way for the rich to make an end run around acting decently. Who is violating our rights shouldn't matter; rights aren't a grant from government, rights are in our souls.

      As for the proliferation of rights arguments, you should be glad. If there had been such inequality at any other point in history, people would have given up rights talk long ago. Thankfully, people are kept dumb with sex, religion and TV.

      Corporate Rights

      Jul 10, 2015 at 4:57pm

      "the courts are not the place for social policy adjudication"

      Seeing that the Courts have seen fit to call corporations people and to give them rights as such, the statement above is as much a lie as calling corporations people. But then the search for truth and the protection of real people (except, of course, the people that run corporations) seems to be something in which the courts have little interest.