Human rights in Canada are subject to two legislative authorities. They are the Canadian Charter of Rights and Freedoms and the fourteen individual federal and provincial Human Rights Acts, across the country. The purpose of the Charter is to protect an individual’s human rights from government intrusion, whereas the purpose of the federal and provincial human rights acts is to protect persons from violations of their human rights by individuals and businesses.
There is a collision of rights under the Charter and the Human Rights Acts, as some of these rights compete with each other – claiming equal treatment under the law. The most prominent collision of rights occurs in regard to the right to religious freedom vs. homosexual rights. It is this particular conflict that Canadian jurisprudence has spent much time and effort struggling to reconcile. The question the courts have had to deal with is whether one of these rights, i.e. homosexual rights, can dominate the law and be used to suppress religious rights, or alternatively, whether there can be an accommodation in the law for both rights to exist together. In the latter situation, no one dominates, but each is given their respective space to operate, and both are included in the public debate. Has this occurred in Canada?
The Charter of Rights
The Charter provides for the protection of religious freedom in two sections: in S.2 and S.15. One might assume, therefore, that this double protection strengthens religious freedoms in Canada. This is not the case. The guarantees for religious freedom in the Charter have, in fact, most often been used to restrict or narrow religious freedom, rather than expand it, especially when it has come in conflict with the “equality” rights of homosexuals. The latters’ rights, by the way, were “written into” the Charter by the Supreme Court of Canada in 1995 in the case of Egan v. Canada, which overruled the decision of the Joint Committee of the Senate and House of Commons in 1980-1981, at which time the Committee deliberately excluded sexual orientation from the Charter by a 22 to 2 vote. The Supreme Court obviously believed that the Committee’s decision was an error. To correct this error, the court decided to “read-in” protection for homosexuals in S.15, on the grounds that “sexual orientation” was analogous to the other protected groups set out in S.15 of the Charter. Once this provision, to protect on the ground of sexual orientation, was written into the Charter by the courts, the way was opened for an increasing list of homosexual demands be met under the law.
The Courts
In dealing with religious rights and homosexual rights, the courts gave homosexual claimants two decided advantages:
- Homosexuals are not required to provide evidence of alleged discrimination against them. Instead, the courts base their decisions on homosexual demands solely on the assertion by homosexual litigants themselves that they have experienced discrimination in Canadian society. That is, homosexual litigants are not required to provide the court with credible data or documentation to support their claims of discrimination. Rather, the Canadian courts accept without question, that homosexuals experience disadvantages or discrimination in Canada because of supposed stereotyping and prejudice against them.
Homosexual litigants’ second advantage is the interpretation the courts give to “equality rights” under the Charter. In the case of Law v Canada (Minister of Employment and Immigration)
This broad interpretation of “equality”, based on “human dignity,” enabled the court, in M v H [1999], to decide that same-sex couples’ rights to equality were violated under S.15 of the Charter (anti-discrimination section) if they were denied same-sex benefits under the provincial family law acts. According to the majority of the Supreme Court in M v H, a homosexual loss in that case would imply that their relationships were “less worthy of recognition and protection and [would imply] that they are judged to be incapable of forming intimate relationships of economic interdependence, as compared to opposite-sex couples. “… The court concluded, therefore, that the exclusion of homosexual partners from family benefits “would perpetuate the disadvantages suffered by individuals in same-sex relationships and contribute to the erasure of their existence”. This argument, by the way, was the exact wording, taken directly from the factum of the homosexual interveners, EGALE, in that case.
The M v H decision was groundbreaking because it recognized the legitimacy and equality of same-sex relationships with heterosexual relationships. M v H therefore set the stage for subsequent court decisions in favour of same-sex marriage, which was to be the culmination of the Canadian courts’ step-by-step support, protection, promotion and legitimization of homosexual relationships in Canada.
Thus, even though religious freedom is written precisely and clearly into two sections of the Charter, it has been trumped by homosexual rights, which were not originally in the Charter but were written into the Charter by the courts. This has created the inevitable collision of rights.
Courts’ Attempts to Balance Competing Rights
In its effort to provide a “balance” between religious freedom and homosexual rights, the Supreme Court of Canada has concluded that religious rights could be divided into two distinct and separate parts, i.e., one part was the right to hold religious beliefs, and the other part was the right to act on those religious beliefs. The court concluded that the right to hold a religious belief had constitutional protection, but that acting or acting on one’s religious belief in the public square, did not have constitutional protection. The decision to separate religious belief from religious action occurred in the case of Brillinger v Brockie [2002]. In that case, a Christian printer in Toronto refused to print material for a homosexual organization. The Divisional Court of Ontario held that Mr. Brockie was free to hold whatever religious belief he chose, but that he was not free to act on those beliefs in the public square. Consequently, Mr. Brockie was ordered by the court to print the homosexual material and pay compensation to the homosexual group for his refusal to do so (even though there were any number of other printers who would have been happy to do the job).
This separation of religious belief from religious behaviour or acting on one’s belief in the public square also arose in Trinity Western University (TWU) v British Columbia College of Teachers (BCCT)[2001]. In that case, the BCCT refused to admit TWU’s graduates to its teacher program, because the university students were required to sign a statement agreeing not to participate in their pre-marital heterosexual or homosexual acts. This, the BCCT claimed, constituted discrimination against homosexuals which rendered Trinity Western graduates ineligible for teacher training. In an 8-1 decision, the Supreme Court of Canada allowed that the University
had a right to hold its own religious beliefs and that its religious beliefs must be tolerated, even though they might discriminate against homosexuals attending that university.
However, the Supreme Court went on to state that even if there was a broad freedom to hold a religious belief, that the freedom to act on that belief (as in a classroom) was not tolerable, because it would interfere with the rights of others (i.e., homosexuals).
It is obvious, however, that religious belief by its very nature forms a central part of a person’s essential being – his inner self – and determines how he relates to the world around him, and directly influences his behaviour. Consequently, this so-called balance of accommodating of religious rights by the Supreme Court by separating religious rights from religiously motivated actions has an air of unreality about it and is merely an artificial construct that provides no balance at all. To separate religious belief from religiously motivated acts is to treat religion as essentially a private matter, and indicates a refusal by the judiciary to recognize the crucial social and cultural dimensions of religion, and its great contributions to society. This intolerance also prevents those holding religious beliefs from feeling truly at home in this country – because they can only regard themselves as outsiders.
Further, as a result of the separation of religious belief from religiously motivated action, a believer’s beliefs are prohibited from restricting or regulating the rights of homosexuals and their values in the public square. At the same time, however, homosexuals and their values are permitted to restrict believers in the public square. In short, those who support homosexual beliefs and rights are free to act upon them in the public square, while religious believers are not allowed the same freedom in view of their beliefs. Examples of the implications of this are numerous, such as B.C. Christian teacher, Chris Kempling, who publicly expressed his views on homosexuality in a local newspaper and was penalized by the BCCT for doing so; Marriage Commissioners in Manitoba, Saskatchewan and Newfoundland are required to perform same-sex marriages contrary to their religious beliefs; a religious organization, the Knights of Columbus in Coquitlam B.C. was fined $2,000 for hurting the feelings of a lesbian couple for refusing to rent their hall to them for their wedding reception; mayors of Canadian cities refusing to declare Gay Pride Day have been fined and ordered to declare Gay Pride Days; a charitable Christian organization in Ontario, Christian Horizons, which assists disabled Canadians, has been required to employ a lesbian activist contrary to its religious principles. The list of the trampling on religious freedoms by the courts and Human Rights Tribunals in the public square is endless and shameful.
Religious Belief and Public Policy
The rights of religious believers – mainly Christians and usually men – are being trampled on in the public square based on the concept that religious doctrine is absolutely irrelevant in determining secular laws and human rights and, therefore, must be excluded from legislative and judicial debates.
For example, David Corbett, a homosexual activist lawyer, appointed several years ago, to the Superior Court of Ontario, has stated:
There is no true ‘collision of values’ between religious and sexual orientation; rather there is a struggle to protect our public policy from being infused with religious ideals for the purpose of denying a particular and disapproved group their equal place within Canadian society.
This concept was the argument accepted by politicians, the media and homosexual activists during the same-sex marriage debate.
David Corbett, by the way, was the lawyer who argued on behalf of Marc Hall, a student with same-sex tendencies, in a Catholic High School in Durham Region in Ontario, who wished to bring his same-sex partner to the school prom. Homosexual activists had hoped to use this case to establish once and for all that since the Catholic high school was supported by public funds, the Catholic Board was obliged to accept the “fundamental principles of secular values”. The Marc Hall case, however, was not pursued by homosexual activists because of complicating factors, such as S.93 of the BNA, which gave Catholic schools constitutional protection in Ontario. Thus, the question of whether religious institutions, such as schools, adoption agencies etc. which receive public funds, are required to support, not their own views but that of the state, has not yet been settled in Canada.
The issue of religious views clashing with secular (homosexual) values arose again in the case of Chamberlain vs. Surrey School District No. 36. In that case, the Surrey school board refused to approve three books, featuring same-sex parents, for classroom use for kindergarten and grade one. The reason for their refusal was that religious parents had expressed concern about the books. The Supreme Court of Canada concluded that, although the school board was required to bring the views of the religious parents into the deliberation process, since “religion is an integral aspect of people’s lives and cannot be left at the board room door”, the Board must also give equal recognition and respect to other members of the community. Further, that for the school to function in an atmosphere of tolerance and respect, the courts stated that it must not be dominated by one religious or moral point of view. In effect, the court concluded that, although religious sensitivities may be represented in the public debate, after such views are expressed, couldn’t be considered public policy!
Chief Justice Beverley McLachlin, while discussing the tension between the rule of law and religious freedom, alleges that there is no part of modern life to which the law does not extend in that “the rule of law leaves no aspect of human experience unaffected by it”.
In effect, she believes that the rule of law is all encompassing, and sweeps everything into its orbit. Thus, Chief Justice McLachlin believes the ultimate victor in the tension between religion and homosexual rights has been decided, and the issue is only how best the rule of law can placate claims of religious freedom. The peculiar and unrealistic separation of religious belief from religiously motivated action, as established in the Brockie and Trinity Western cases, is the court’s altogether unacceptable answer to placating religious believers.
The Future
Human rights acts, both federal and provincial, do include a provision that religious organizations can be exempt from its anti-discrimination provision if that organization’s purpose is primarily to serve its own believers. This exemption, however, must be “reasonable” and “bona fide”. This means, for example, that an organization that is religious in nature cannot deny employment to a secretary or a janitor, for example, who does not share the same faith if that person holds positions in the organization where religion would not be considered relevant. Even this limited right, however, in some circumstances, is not necessarily secure. For example:
In Great Britain, the recently passed Equality laws which to take effect next year, prohibit religious organizations and churches from banning any homosexual/lesbian job applicants. Henceforth, religious groups there will be required to accept homosexual youth workers, etc. and other staff, regardless of its effect on the integrity of their faith based organization.
A homosexual rights group in the State of Maine, has challenged the tax-exempt status of the Roman Catholic Diocese there on the basis that the diocese participated in political activity aimed
at overturning Maine’s new same-sex marriage law. A similar complaint was raised by homosexual activists in the state of Californiaagainst the Church of the Latter Day Saints, which was actively involved in the Proposition 8 referendum, which overturned the California Supreme Court decision, in support of same-sex marriage.
Bishop Fred Henry of the Roman Catholic Diocese of Calgary was threatened by Revenue Canada with removal of his church’s tax-exempt status for issuing a pastoral letter against same-sex marriage during an election campaign.
New York State Democrats in the state legislature have put forward a proposal which includes requiring all hospitals to perform abortions; cutting major funding for Catholic schools, and abolishing the statute of limitations re: sex abuse law suits against the Catholic Church. The latter provision would apply only to institutions, such as the Catholic Church and Boy Scouts, but would exempt public schools. This is peculiar, because an Associated Press investigation found that 485 “moral misconduct” charges (most involving sex) were brought against New York State teachers between 2001 and 2005, but that during this same period of time, fewer than ten charges of sex abuse were brought against Catholic priests in New York. This proposal, therefore, if passed into law, contains more than a hint of bigotry and bias and suggests a very keen desire to remove all traces of religion from contemporary society.
In Brantford, Ontario, the Municipal Council is considering removal of the tax-exempt status from the non-worship space of mosques, temples, churches and “other areas owned by places of worship, such as halls, nurseries, offices, kitchens, parking lots, etc. This resolution was first proposed last year, but caused such a furor, that it was put aside for further deliberation. However, it has been proposed again.
Maintaining a Just Society
Maintaining a “just society” is not easy. Religious belief, however, is not going to go away. These beliefs have stood the test of time over the centuries and should not be required to adapt or bend in the public square in order to accommodate homosexual lifestyle choices, which have been promoted and protected by the courts. A just society has a responsibility, within reason, to protect the freedoms of those who hold traditional religious beliefs, just as it now protects homosexual rights.
Why is “toleration” only a one-way street? That is to say, why are limitations on religious belief and action justified, while limitations are not placed on non-religious beliefs and practices? Such a position contradicts the court’s own position that there is no hierarchy of rights under the Charter, i.e. that one right cannot trump another right (Dagenais v Canadian Broadcasting Corporation, [1994] ).
It is essential, therefore, that all beliefs systems (e.g. homosexual and religious) be permitted to operate freely and be accommodated in the public square i.e. on a “to live and let live” basis. This reconciliation of opposing provisions in the Charter would lead to a fair, reasonable and genuine balancing of rights and would provide true equality under Canadian law that, due to the bias and intolerance ofCanada’s elites, is not currently available.
June 8, 2009