The Canadian Legal System: Friend or Foe of Religious Freedom
Don Hutchinson, B.A., J.D.
May 26, 2014
The Canadian legal system is composed of several levels of courts, a multiplicity of tribunals, and tens of thousands of lawyers, investigators and police officers. In theory, all these submit themselves to various legislative assemblies – from town councils and school boards to provincial and territorial governments as well as the Parliament of Canada. Constitutionally, Canada is a parliamentary democracy; however, since 1982 increasing deference has been paid to the courts, particularly the Supreme Court of Canada.
On April 17, 1982, the day after my last exam in first year law school, I pedaled my bicycle across town on a sunny Vancouver day to have breakfast at a friend’s and watch his colour TV as, on a rainy day in Ottawa, our constitution was brought to Canada from England. Along with the British North America Act crossing the pond – and being renamed the Constitution Act, 1867 – the entire Canadian legal system was amended through the made in Canada Constitution Act, 1982. Key to this Canadianized component was the Canadian Charter of Rights and Freedoms, often referred to simply as the “Charter.”
The Charter applies between government and government agencies – federal, provincial, municipal, school boards, etc – and the citizenry. It does not apply between private persons. Human rights codes, acts and bills of rights are constitution-like legislation that apply to the relationship between non-governmental parties, as well as between government and citizens within the provincial or federal jurisdiction of the particular code.
In addition to a preamble recognizing the foundation of this nation “upon principles that recognize the supremacy of God and the rule of law,” the Charter is comprised of a series of brief statements, negotiated by committee with the intention of summarizing the recognized rights and freedoms of the Canadian peoples after 115 years of “Canada.”
Religious Freedom Enshrined
The first freedoms mentioned in the Charter are stated to be “fundamental.” One would think this to be a reference to the essential, primary and underlying freedoms of the nation as a free and democratic society. However, the Supreme Court of Canada has determined that there is, at least theoretically, no hierarchy of rights.
The first freedom listed is “freedom of conscience and religion.” Freedom of religion has been recognized by Brian Grim and Roger Finke in their book The Price of Freedom Denied as the “canary in the coal mine” freedom; or, to use another word, fundamental to any free society.
In 2005 Canada was listed for the first time by the Voice of the Martyrs as a nation displaying early signs of a general, government accepted persecution of Christians. The early signs are efforts to i) stereotype, ii) vilify and iii) marginalize Christians simply because of our faith.
This is partly due to the application of section 1 of the Charter:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
No right is absolute. The Supreme Court of Canada has settled on a, theoretically, objective test for assessing whether or not laws and regulations established by various levels of government and government authorized bodies are constitutionally acceptable “reasonable limits.” To be reasonable, the initiative violating a right must be:
- Prescribed by law
- Have a pressing and substantial purpose
- Be reasonable and demonstrably justified, i.e.
- Rationally connected to the law’s purpose, and
- Resulting in minimal impairment of the right
- And, finally, proportionate to attaining the intended effect.
Section 1 analysis of the violation of freedom of religion has set components of the Canadian legal system at odds with one another.
In addition, the Supreme Court of Canada has interpreted section 15 of the Charter, which provides for equal protection and equal benefit of the law, as providing rights for analogous categories of rights to those listed in the Charter. Perhaps, the most contentious recognition has been to an analogous right of “sexual orientation,” which has set up a direct competing right with certain religious beliefs and practices. The interpretation of section 15 in this way arises from the drafters’ use of the words “in particular,” which the Court determined to refer to examples of an open list rather than statement of a closed list.
In short, the Supreme Court of Canada has described the Constitution as a “living tree” that changes with the times, rejecting the concept that the Charter is a record of the foundational democratic freedoms established in the first 115 years of the Canadian legal system.
Religious Freedom defined
The first case to reach the Supreme Court of Canada on the constitutional right to freedom of religion was not a personal claim based on religion, but a commercial claim based on a desire to open an Alberta drug store on Sundays; which, 3 decades ago, was a violation of federal law.
The Court set out a robust definition of religious freedom that mirrored the wording in Article 18 of The Universal Declaration of Human Rights: the right to believe; to share one’s beliefs openly with others; the right to worship; practice by living life according to one’s beliefs; as well as to teach and disseminate one’s beliefs. This was a bold definition that echoed the historic development of religious freedoms in Canada.
As the Court continued, it placed restrictions on freedom of religion based on terms that have proven to be uncertain in law: injury or harm to one’s neighbours or their parallel or competing rights.
And, ultimately, the Court introduced the concept that religious freedom includes the right to be free from religion, or government action that gives the appearance of religious imposition. The centuries old concept of government and religion working cooperatively together was supplanted with something akin to a Canadianized version of the American doctrine of the separation of church and state; notwithstanding, the Court left our Constitutional monarchy intact event though the Queen is also the head of the Anglican Church. The Sunday closing law, unsuitably named the Lord’s Day Act, was struck from the books.
A year later, the Court affirmed that religion has both individual and collective aspects.
Then the judges noted that laws impacting religion could be made by any level of government, based on the Constitutional division of powers; and, a law perceived to have a religious purpose would be found unconstitutional.
Religious Freedom refined
In 1991 the court affirmed the right to privileged communication between clergy and parishioners.
And then, undid the privilege based on the state’s need for evidence to secure a conviction in a murder trial.
There were also three very friendly decisions of the Supreme Court that refine the constitutional position on faith practices associated with sincerely held religious beliefs.
In Amselem and Multani, the Court found that neither it nor government should be the arbiter of religious beliefs; or, the diversity of safe practices associated with those beliefs. The Court also determined that other state decision makers had to make their decisions in the context of the Charter’s guarantees.
Both of these decisions were applying to the individual what the court had decided in the earlier case of Trinity Western University and the British Columbia College of Teachers.
In that case, the Court endorsed the concept that “The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.” The school could teach education and the graduates could teach in the public school system.
Most often quoted by opponents in the current debate around Trinity Western establishing a law school is one line from the decision. “The freedom to hold beliefs is broader than the freedom to act on them.”
Let’s look at that line in its proper context.
“Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.”
Education is about meeting educational standards. Professional practice is about meeting practice standards of the profession. Context is important.
Religious Freedom Revisited
As recently as 2009, the Court affirmed the principles in Trinity Western and Amselem in its decision in Alberta v Hutterian Brethren.
However, in that case Chief Justice McLachlin and the majority took a new departure in regard to freedom of religion.
While recognizing the individual would be deprived by the law because of their religious beliefs, the Court concluded that the community could bear the additional costs imposed. In effect, the duty to accommodate was shifted from the state to the religious believer and community. This opens the door to put pressure on individuals and communities to change their non-harmful religious beliefs and practices based on a burden imposed by the state through law or regulation.
The decision in Chamberlain resurrected the preamble to the Charter after many had buried the Charter’s reference to the supremacy of God. The Court defined the concept of a secular society as one that embraces the religious people in its midst in all aspects of life. The Court concluded that “everyone has ‘belief’ or ‘faith’ in something, be it atheistic, agnostic or religious
Some object to any influence being given these words written in dissent by Justice Gonthier in dissent. However, the Chief Justice, in her decision on behalf of the majority, noted agreement with him on this and other points.
In the end, the Court sent the decision back to the school board; with strong language encouraging the school board’s final decision to hear the religious objections of the majority, but be inclusive of the position of the minority.
In 2013’s Whatcott decision the Court: offered constitutional protection to sacred texts, such as the Bible; affirmed that religious principles are welcome in the public square and set aside the allegation that speech that hurt someone’s feelings was to be considered as hate speech.
But the court noted the importance of the context in which the Scriptures are used and in which religious principles are expressed as important determinants of the appropriateness of what is being expressed; stating that if the communication could be reasonable perceived as targeting an identifiable group it might be considered hate speech.
The Court offered a strange “no decision” ruling in the S.L. case in 2012. It affirmed the state’s role in setting educational requirements, as well as the right of parents to raise their children in their own faith beliefs. However, the Court essentially disqualified the case because the parents had not demonstrated that the proposed education program to which they objected had actually caused any harm to their children. This was a departure from long endorsed concepts of prevention of harm or potential for injury.
The court did acknowledge that the state is not capable of being fully neutral; and declare that the state should neither favour nor hinder any particular religious belief. The bench also remarked that this non-decision did not favour the government’s position.
And, essentially the issues were presented before the Court again in March of this year in the Loyola case.
This is just a sampling of one branch of the Canadian legal system’s treatment of “freedom of religion.” We haven’t touched on: the treatment of public school teachers who advocated religious principles on public policy matters; marriage commissioners removed from their positions because of their religious beliefs about marriage; municipalities’ efforts to zone out religious presence; or human rights tribunal decisions that have required faith communities to change practices connected with their sincerely held religious beliefs, or finding a song called “Kill All The Christians” not to be hateful.
If there is indeed no hierarchy of rights, then freedom of religion is in second place when it should be tied for first with all other rights recognized under the Charter. Human rights in Canada have been mistakenly applied to protect perceived minorities rather than support all Canadians.
Is the Canadian legal system a friend or foe of religious freedom? I’d say it’s more like Dr. Jekyll and Mr. Hyde!