For those who haven’t been following this case, you won’t yet know that there’s a final thundercloud in this perfect storm of fundamental freedoms: Whatcott demonstrates on behalf of his religion, the Christian Truth Activists.

Oral submissions have been made; some had observing counselors hiding their reddening faces and shaking with silent laughter. A media lockup has been requested. Sadly, I do not anticipate an invitation to this event. However, soon, (if we’re lucky) we’ll learn not only how to balance all the competing rights at stake here but also how Canada’s human rights tribunals are supposed to work.

SHRC v Whatcott Part I outlined the grounds on which the tribunal’s decision was upheld at the trial level. Whatcott appealed again, and found a sympathetic ear at Saskatchewan’s Court of Appeal. Here is how the rest of Whatcott’s journey to the SCC unfolds.

The Court of Appeal says: gay teachers in public schools? Debatable.

Hunter JA noted that this particular provision, s. 14(1)(b) of Saskatchewan’s Human Rights Code, has only been tested a few times since its enactment in 1979. She sets out the Taylor test for limiting freedom of expression, emphasizing “the bar is set very high” (para 44). She also reiterates Taylor’s emphasis on the necessity of evaluating speech using a contextual analysis – in other words, reading the Code with an understanding of the purposes informing it and the factual findings pertaining to the particular case. In conducting a s 14 analysis, the protection of freedom of speech and freedom of religion must be carefully considered.

Obviously, there is an abundance of jurisprudence on the limits of freedom of expression; please bear with me while I summarize it briefly. All emphasis is added.

Hunter JA found that the appeal in Owens (2010), taken together with the tests for protection of free speech in Keegstra and Taylor, indicate that “neither the perspective of the person who sends the message nor the sensibilities of the person who may be the target of the message, has a part to play in determining the effect of the message” (para 55).

To allow subjective factors to feature in the analysis would either create an unacceptable chill on the freedom of speech or make the provision inapplicable in cases where the message was clearly dangerous, rendering the legislation useless.

Taking an objective view of the context of the expression is particularly important, she writes, when considering complaints based on sexual orientation–the offending speech is more often than not of a ‘moral’ character, and “[i]t is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour” (para 62). To be deemed hate speech, “the expression must meet the Taylor test for hatred as proscribed in Bell [detestation, calumny and vilification], and must be clear on the face of the publication, without resort to conjecture and speculation” (para 65).

Having set out the applicable law, Hunter JA found that the Tribunal had not considered the flyers in their entirety, but had inappropriately quoted content out of its context.  As a result, it had distorted the impact of the flyers without considering the impact a s. 14(1)(b) sanction would have on Whatcott’s rights. When taken in their entirety, the flyers did not rise to the level of hatred required. Moreover, she writes, Whatcott’s flyers were a response to a policy decision made by the Saskatoon School Board which recommended that information on homosexuality be included in the school curriculum and libraries(71). Whatcott’s key message in this debate was:

“Now the homosexuals want to share their filth and propaganda with Saskatchewan’s children.” (Flyer D, “Keep Homosexuality out of Saskatoon’s Public Schools!”)

As for the flyer with the handwritten notes (“Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!”), Hunter JA found that it did not contribute to any debate about what was being taught in schools , nor could it be attributed to a larger debate about morality. However, while it might be a “smear” against homosexuals, it did not “tip the balance in favour of limiting free expression so that it has the effect of censoring the entire publication” (79).

Regarding the comments on the classifieds section of Perceptions, (“Saskatchewan’s largest gay magazine allows ads for men seeking boys!” and “If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea”), Hunter JA wrote:

“a reasonable person on reading of the plain wording of the flyer in its entirety would not conclude that the effect of the flyers exposes or tends to expose homosexuals to hatred as that term is prescribed in Bell” (Para 85).

Why? The test for whether the publication breaches the Code must be carried out from an objective standpoint based on the face of the publication. When the words are as “ambiguous” as they are held to be here, they ought to be interpreted in the manner which best protects freedom of expression.

Hunter JA found that because, in aggregate, the flyers did not expose homosexuals to the level of hatred required, and because some contributed to an ongoing debate about homosexuality in public schools, the appeal could be denied based on the provisions of the Code alone.  She stopped short of addressing the other issues at appeal advanced by the litigation parties.

Smith JA agrees this aint hate, and elaborates:

Smith JA, concurring in the result, further commented on the state of the law. To find that an expression deserves prohibition based on s. 14(1), “the causal connection between the (impugned) expression and the discriminatory practices otherwise prohibited in the Code (is that) the causal effect of the expression is, for example, to promote stereotypes that themselves jeopardize equal opportunities for employment, housing, education and so on” (para 97).

He discusses at length the role of freedom of expression in a democratic society, and finds that a decision maker must balance the goals of s 14(1) against other rights protected in the Code. In applying the provision, care must be taken to ensure that, while its use will limit expression, the harm caused does not exceed the s. 1 justification for this infringement enunciated in Taylor and accepted in Bell (para 110).

The objective enlivening the discourse is relevant, argues Smith JA, entertaining Whatcott’s “hate the sin but not the sinner” argument. Determining whether the expression rises to the level of hate required to justify banning it necessitates an inquiry into the declarant’s intentions. Whatcott insists it is the activity of homosexual sex, and not the homosexual himself that his religion takes issue with. Smith JA endorses this argument to some extent, noting that questions of sexual morality “lie near the heart of speech worthy of protection from the chilling effects legislative prohibition” (para 134).

Finally, he asks the critical question that demonstrates the difference between the judgments of Hunter JA and Kovach JA at the trial level: do the restrictive words in the phrase, “promotes hatred or contempt,” in s. 14(1) pass the strict common law standard we have developed in evaluating hate speech?

He concludes at para 138, holding: “Where, on an objective interpretation, the impugned expression is essentially directed to disapprobation of same-sex sexual conduct in a context of comment on issues of public policy or sexual morality, its limitation is not justifiable in a free and democratic society.”

Conclusion:

In the US, Whatcott would not have been fined in the first place. In the UK, Whatcott wouldn’t have been pamphleting this material in the first place. Where, in Canada, do we stand in that spectrum?

In 1995, Cory J wrote in Egan v. Canada, gays and lesbians, “whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage.” Reactions to Whatcott’s flyers should not be cavalierly dismissed as ‘hurt feelings.’

It is important to consider that allowing Whatcott to continue distributing these flyers could potentially brush against another constitutional right – the right to equality. It is all but uncontroverted that homosexuals remain a vulnerable and often highly stigmatized group. In fact, this is the very reason that Canada has extended the right to equality to people who suffer from discrimination on the basis of their sexual orientation. That doesn’t mean just based on how gays define their sexuality, but also how they act on it. Thankfully, Whatcott doesn’t seem to be in a position of power – but common misconceptions and fears have led to centuries of discrimination against individuals based on sexual orientation.  The messages he sends could very likely generate sexual discrimination against the homosexual community.

A columnist at The Calgary Herald reports that the Albertan legislation governing discriminatory publications and notices (s. 3 of their Code) will soon be “eliminated.” That certainly doesn’t sound like a step towards progress. While the provisions do limit the freedom of expression, and in some cases freedom of religion, the Code should be rewritten so that they reflect a reasonable limit on those rights that are demonstrably justified in a free and democratic society.

In coming to their conclusion, I hope the SCC will at least recognize that these publications violate s. 14(1)(b), both on their face and within their context. The Court should either narrow the scope of the provision or at least re-examine the constitutionality of these provisions without simply declaring that the flyers do or do not contravene the Code.

PS – for anyone still reading: don’t forget – Taylor was heard around the same time as R. v. Keegstra [1990] and R. v. Andrews, [1990] both of which concerned s. 319(2) of the Criminal Code, which prohibits “willfully promoting hatred.” All three decisions were split 4/3 – Dickson, CJC (as he was then) wrote for the three majorities that upheld the legislation. McLachlin J (as she was then) wrote the dissents in all three. Will McLachlin CJC (as she is now) tip the balance in favour of protecting free speech?

What followed was a legal challenge to the definition of marriage in Canada.  The Ontario Divisional Court and the Ontario Court of Appeal held that the common law definition of marriage infringed the rights of the couples.  The OCA court also ordered that the marriages be registered.

Although Parliament eventually enacted a law redefining marriage to include same-sex unions in 2005, the recognition and registration of the marriages that were conducted at the MCCT in 2001 earned Canada the distinction of having the first registered gay and lesbian marriages in the world.

However, as is often the case with struggles over civil rights, substantive equality does not always signal a similar shift in social attitudes. This point is perfectly illustrated by the Court of Appeal for Saskatchewan’s recent decision in the Marriage Commissioners Reference, 2011 SKCA 3. The court released its decision in the Reference on January 10 – coincidentally, just four days before the tenth anniversary of the first recognized same sex unions in Canada – concerning the constitutional validity of possible legislative amendments that would allow marriage commissioners in Saskatchewan to refuse to perform same-sex marriage ceremonies on religious grounds.

Facts & History

Following the formal enactment of the Civil Marriage Act in 2006, which amended the federal definition of “marriage,”  a handful of marriage commissioners in Saskatchewan refused to solemnize same-sex unions, citing religious grounds. Their refusal led to proceedings under the Saskatchewan Human Rights Code, as well as a civil action brought by a same-sex couple who were refused a solemnization by a marriage commissioner. In response, the Saskatchewan government proposed two amendments to the provincial The Marriage Act, 1995, and sought the Court of Appeal’s opinion on the constitutional validity of these amendments by way of a reference.

As noted by the Court in its decision, the marriage commissioners play an important role in the overall scheme of The Marriage Act, 1995. Section 3 of the Act sets out who may solemnize marriages between persons. For instance, the Act empowers religious officials such as clergy and Rabbis to solemnize marriages if registered pursuant to the Act. Perhaps most significantly, marriage commissioners are, the Court notes, “the route – the only route – by which individuals who wish to be married by way of a non-religious ceremony may have their union solemnized.” In other words, if a religious official refused to solemnize a couple’s marriage, marriage commissioners of the province are the couple’s only secular option.

In Reference Re Same-Sex Marriage, the Supreme Court of Canada was asked to weigh in on the validity of proposed federal legislation, which eventually led to the enactment of the Civil Marriage Act. In finding that the redefinition of marriage to include same-sex couples was constitutional and within the competence of Parliament, the Court also held that the guarantee of freedom of religion in the Charter of Rights and Freedoms protected religious officials from being compelled by the state to perform same-sex marriages, despite their religious conviction against such unions. The question that remained, however, was whether public servants like marriage commissioners, who occupied the role of solemnizing civil marriages, could refuse to perform same-sex marriages on a similar basis.

The two proposed amendments in Saskatchewan essentially would have provided marriage commissioners with the same rights. The first proposed amendment, Schedule A, would allow a marriage commissioner appointed on or before November 5, 2004 to refuse to solemnize a marriage if doing so would be “contrary to the marriage commissioner’s religious beliefs,” notwithstanding the provincial human rights code. Schedule B offered the same protection, but to all marriage commissioners regardless of when they were appointed.

The Court’s Decision

The Court of Appeal’s decision in the Marriage Commissioners Reference includes two opinions. The first is penned by Richards J.A., with Klebuc C.J.S. and Ottenbreit J.A. concurring, and the second by Smith J.A. with Vancise J.A. concurring.

Both Richards J.A. and Smith J.A. easily conclude that the proposed provisions would clearly violate section 15(1) of the Charter, as the provisions would allow for the differential treatment of gay and lesbian couples in a discriminatory fashion.

Richards J.A. also rejected the argument put forward that any impact flowing from the amendments would be insignificant because gay or lesbian couples who were turned down by a commissioner could “easily contact another commissioner who will be prepared to proceed.”

Richards J.A. noted that,

This submission overlooks, or inappropriately discounts, the importance of the impact on gay or lesbian couples of being told by a marriage commissioner that he or she will not solemnize a same-sex union. As can be easily understood, such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different.

Further, Richards J.A. noted that a substantial number of commissioners may choose not to perform same sex marriages if the measures were enacted, increasing the difficulty for same-sex couples to have their marriages solemnized. There was also a concern that same-sex couples particularly living in rural areas or away from large urban centers would have to travel large distances to find a willing commissioner.

The key issue in the Reference, according to both judges, was whether the violation of rights could be justified as reasonable under section 1 of the Charter. Richards J.A. also noted that a section 1 analysis would be the appropriate venue to balance the rights of same sex couples against the religious rights of marriage commissioners. In these circumstances, Richards J.A. noted that:

[M]arriage commissioners have to make a choice. They can either perform same-sex marriages or they can leave their offices. Accordingly, the obligation to perform a same-sex ceremonies does not interfere in a trivial or insubstantial way with the s. 2(a) freedoms of those commissioners who would have to act contrary to their religious beliefs in order to solemnize a same-sex union.

In order to determine if a violation of a Charter right is justifiable under section 1, courts must apply the Oakes test. The first requirement of the test is that the objective of the law be of sufficient importance to warrant overriding a Charter right. If this requirement is satisfied, judges conduct a “proportionality” test where three factors are considered to determine if a law is proportional. First, the law must be rationally connected to its objective. Secondly, the law must impair the right or freedom in question as minimally as possible. And finally, there must be an overall proportionality between the deleterious effects of the law and its object.

Richards J.A. concluded that the first requirement of sufficient importance was met, and that the amendments are rationally connected to their objective. However, when considering the minimal impairment of rights by the provisions, the judge raised the possibility of a single entry point system where couples could seek the services through a central office, rather than contacting commissioners directly. In such a system, the beliefs of commissioners could be accommodated “behind the scenes,” while also ensuring that couples didn’t have to deal with the sting of rejection based on their sexual orientation. Richards J.A. noted that “the accommodation of commissioners who did not want to be involved in a same-sex ceremony would not be apparent to the couple proposing to wed and there would be no risk of the couple approaching a commissioner and being refused services because of their sexual orientation.”

Because such a system would minimize the impairment or incursion on the rights of couples, the amendments did not pass muster. However, Richards J.A. went on to consider the proportionality between the effects, and the judge found that the deleterious effects outweighed the salutary effects. Additionally, the amendment would violate one of the fundamental precepts of how public services should be delivered:

Marriage commissioners do not act as private citizens when they discharge their official duty. Rather, they serve as agents of the Province and act on its behalf and its behalf only. Accordingly, a system that would make marriage services available according to the personal religious beliefs of commissioners is highly problematic. It would undercut the basic principle that governmental services must be provided on an impartial and non-discriminatory basis.

Thus, Richards J.A. held that the proposed amendments would violate section 15, and could not be justified as reasonable under section 1 of the Charter.

Although Smith J.A. concurred in the result reached by Richards J.A., the concurring judgment departs on the section 1 analysis. In considering the objective of the legislation at the first stage of the Oakes test, she found that the provisions should not be characterized as accommodating the religious beliefs of marriage commissioners. Instead, the judgment notes, the objective is to “permit marriage commissioners to refuse to perform same-sex marriage ceremonies when to do so conflicts with their religious beliefs.”

Taking this narrower view of the objective of the legislation, Smith J.A, went on to consider the objections of marriage commissioners and interveners who support the amendments. In considering their views, Smith J.A. found that the religious objection could be boiled down to two bases. The first was that same-sex marriage is not included in their “religious conception,” and that there is no difference between religious and civil marriages. The second objection is that the claimants believe that a same-sex union is sinful, “and that to officiate in the ceremony would give the appearance of approval of, and might serve to encourage, such a sinful lifestyle.”

Smith J.A. noted that the first position was contrary to the provisions of the Act that were designed to protect the freedom of religion by providing for religious marriages, as distinct from non-religious civil marriages. Additionally, such a position is also contrary to the law surrounding same-sex unions.

On the second point, Smith J.A. stated that “it is far from clear that officiating at a civil marriage ceremony carries any implication or connotation at all that the marriage commissioner who officiates necessarily approves of the particular union.”

This analysis leads Smith J.A. to the conclusion that “the performance of a civil marriage by a marriage commissioner is not a religious rite or practice. Nor does the requirement to do so limit or restrict religious belief.” In addition, the judgment notes that the requirement that commissioners perform same-sex unions would affect their religious objection only in a secondary way.

Thus, Smith J.A. held that any claim for Charter protection based on religious freedoms would be “an exceedingly weak one,” and that it is doubtful that the objectives of the amendments would meet the threshold of “pressing and substantial” established by the Oakes test.

The Unsettling Reality of a Settled Legal Issue

The legal landscape for same-sex couples seeking the right to enter into civil marriages has been transformed over the last decade. However, as the Saskatchewan Marriage Commissioners Reference shows, the legal battle has now shifted to issues of access.

If anything, the Reference shines a light on the sometimes-unhappy marriage between legal precedents and social attitudes. Although same-sex couples have been granted the same legal rights and the legal definition of civil marriage has been transformed, marriage is a deeply embedded religious institution and many Canadians view same-sex unions as an affront to their beliefs. The amendments at issue in the Reference are another attempt to push back against the specter of gay marriage, and it is unlikely that it will be the last challenge.

At the end of the day, however, the Saskatchewan Court’s decision in the Reference is not surprising. The jurisprudential history surrounding same-sex marriage rights has gone to great lengths to decouple the religious institutional of marriage from the civil construction of marriage. Although courts have ensured that religious officials are not compelled to perform same-sex marriages, it could be argued that pubic servants such as marriage commissioners occupy an uncomfortable middle ground.

However, as noted,  the drafted laws were overly broad. The laws, as proposed, could even allow marriage commissioners to refuse to perform interfaith or interracial marriages. The Court identified another possible means — a single entry point system — that could mitigate some of the discriminatory effects of religious accommodations more effectively than an amendment to the Act. But also, there is the overarching issue: should religious rhetoric be injected into what is, at its core, a secular position that was created to perform non-religious civil marriages as an alternative to religious solemnization?

Although the debate before the Court was highly charged due to polemical positions on same-sex marriage, the amendments would have had the troubling effect of adding religious content to an inherently secular public service.

The blessings are distinct from performing the sacrament of marriage, which remains out of reach of same-sex couples anywhere within the ACC.  Despite the distinction, the practice of the blessings remained controversial, with Rowan Williams, the Archbishop of Canterbury and head of the Church of England, describing the decision by some Anglican dioceses to perform the blessings as representing a ‘schismatic division’ within the Church. The core issue in Bentley was the decision by four parishes to remove themselves from the New Westminster diocese as a sign of their disapproval of the doctrinal change allowing the blessings. The plaintiffs in the case – the trustees and clergy of the four parishes – sought a variety of declarations and orders that, essentially, claimed that the property used in the parishes was held in trust for purposes consistent with “historic, orthodox” Anglican doctrine, and since the actions of the diocese were no longer consistent with that doctrine, they therefore requested a cy-pres order that would amend the trust so as to grant the breakaway parishes control over the trust. A secondary issue dealt with the authority of the Bishop to remove the trustees of the break-away parishes from their boards, but I will not discuss that here.

The judge of first instance concluded that since s. 7 of the Diocese’s own Act requires consent from the Bishop before any incorporation of a parish, a parish does not have the authority to unilaterally leave.  Therefore, said the judge, even though the parishes may have title to the real property in question, they could not use it in a manner for which they did not have approval from the Bishop and Executive Committee of the Diocese. Considering this sufficient to decide the issue, the trial judge nonetheless considered in the alternative the question relating the religious trust, finding that if a charitable purpose trust existed it was for the purposes as defined by the ACC, not individual parishes.  The plaintiffs appealed.

The Court of Appeal approached the core concerns by asking whether the properties were held on trust and if so what were the purposes of this trust? Newbury JA., writing for a unanimous court, concluded that the historical and statutory background of the ACC suggested that it held properties on trust. The second question was more complicated. The court agreed with the plaintiffs that the purpose of the trust was, in general terms, for the purposes of Anglican ministry. This however raised the troubling proposition of the court having to determine doctrinal issues internal the Church, in terms of determining appropriate “Anglican ministry”.  The court concluded that there was little authority to suggest that a cy-pres remedy was appropriate in cases of internal disagreement over doctrine – in other words, so long as there was a functioning Anglican church, it was difficult to suggest that the purposes were not being met and therefore court intervention was required.  Since the ACC was an autonomous body within worldwide Anglicanism, the relevance of global disagreement over blessing same-sex unions was of little relevance.  Thus, while the plaintiffs were correct that the properties were held on trust for the purposes of Anglican ministry, the content of that ministry was legitimately determined by the Anglican Church of Canada, and once the plaintiffs had “remove[d] themselves from the bishop’s oversight and diocesan structure” they could not legitimately also claim a right to use the ACC’s properties (at para. 76).

The four parishes have not yet sought leave to appeal to the Supreme Court, though public statements have indicated they are considering it as an option.  If they choose to do so, the Court will face an interesting question regarding the oversight of religious bodies in Canada.  While the Court of Appeal indicated deference to internal doctrinal evolution was the preferable approach, it is possible the Supreme Court will choose to hear a Bentley appeal in order to make a definitive statement on the matter. Given the possibility of a case regarding the constitutionality of polygamy laws (see the amici curiae post of my colleagues, Chris and Ivy, here) as they relate to religious groups also ending up on the SCC’s docket in the next few years, the Court may have an eye on how the principles adopted in Bentley will play out in other areas that deal with the interaction between secular courts and religious doctrine.

In dealing with the issue, the court was confronted with an incredibly challenging set of facts. N.S. alleged that she was repeatedly sexually assaulted by her uncle and cousin, the accused M—I.S. and M—d.S., when she was a child. The alleged abuse occurred between 1982 and 1987, and began when N.S. was six years old. The assaults were revealed to a teacher in 1992, but N.S.’s father did not want to proceed with charges at the time.

At the preliminary inquiry, both accused men sought an order that would require N.S. to remove the niqab before testifying. N.S., unassisted by counsel at the time, strongly objected to the motion. She testified that the niqab was an important part of her beliefs, and being asked to remove her religious garb as part of a judicial proceeding would make her very uncomfortable.

The accused, on the other hand, put forward the argument that given the severity of the charges against them, their right to make full answer and defence required that they be able to see the witness’s face, particularly when she was being cross-examined.

To further complicate the matter, the preliminary inquiry judge’s reasons indicate that he was made aware of the fact that N.S. had previously been photographed for a driver’s licence. Although special accommodations had been made for the photograph to be taken in the presence of a female photographer, the judge in the preliminary inquiry eventually concluded that the complainant’s religious belief “is not that strong,” and that she should testify in the preliminary inquiry without her veil.

At the appellate level, the court set out a framework for balancing the complex competing rights that are often at stake when the religious beliefs of a witness are in conflict with the rights of the accused.

Facts and History

At the Superior Court, it was held that “where an application is made to require a witness to remove her niqab, the court must enquire into the reason for the wearing of the niqab and the genuineness of any religious belief relied on to explain the wearing of the niqab.” The court quashed the preliminary inquiry judge’s order requiring that N.S. testify without a niqab, and the matter was remitted to the preliminary inquiry judge for redetermination.

N.S. then sought relief in the Court of Appeal, where the court considered if the preliminary inquiry judge had the jurisdiction to decide whether a witness should be required to change their attire. While the Court noted that a judge in a preliminary inquiry has no remedial jurisdiction under the Charter, the judge can take Charter principles and values into consideration when exercising statutory powers. The court concluded that:

If the preliminary inquiry judge must render decisions that are in accordance with the Charter, he or she must have regard to competing Charter values and endeavour to render decisions that reflect an appropriate reconciliation of those values.

The court was ultimately satisfied that a preliminary inquiry judge has the statutory power to regulate how a witness would testify, including the power to ask a witness to change their attire before they take the stand.

Unveiling a New Approach to the Niqab

After answering the first issue on appeal in the affirmative, the Court of Appeal went on to consider whether the preliminary inquiry judge had erred in law by requiring N.S. to remove her niqab. In considering this issue, the Court was clearly aware of the broader political debate surrounding the hijab and the niqab. Earlier in the judgment, the Court noted:

The wearing of a niqab in public places is controversial in many countries including Canada. The controversy raises important public policy concerns that have generated heated debate. Those difficult and important questions are not the focus of this proceeding and cannot and should not be resoled in this forum.

The court’s technique in distancing itself from the broader public debate about Muslim religious garb was to compare the rights of the witness in this case to a witness who is wearing dark sunglasses, and the various constitutional values that are attached to the witness’s reasons for wearing the glasses.

The court’s analysis of the preliminary inquiry judge’s decision similarly tries to divorce the niqab from the broader public debate. Instead, the court places the focus on the parties’ interests that are at stake specifically in this case.

The Court of Appeal’s decision dictates that when deciding on such an issue, the preliminary inquiry judge must attempt to reconcile the rights of the parties, and ensure that “no Charter right be treated as absolute and that no one right be regarded as inherently superior to another.” The court first considered the accused men’s right to a fair trial, noting that covering the face of a witness may impede cross-examination by limiting the trier of fact’s ability to assess the demeanour of the witness, and depriving the cross-examiner of insight provided by non-verbal communication.

The court then considered the religious rights that are at issue, using jurisprudence under section 2(a) of the Charter, dealing with freedom of religion, as a framework for an assessment of the complainant’s rights. The court also considered the preliminary inquiry judge’s use of the driver’s licence photograph as a central factor, noting that it may provide some insight when measuring the sincerity of the religious beliefs, “past practice cannot be equated with present belief.” However, the court did set out a way for past exceptions to be tendered as part of the analysis:

…I think it would be important, given the information provided concerning the licence photograph, to determine the extent to which N.S.’s belief that she must wear a niqab in public admits of exceptions. If that belief admits of an exception that could reasonably cover the circumstance of a witness testifying at a criminal trial, I do not think that N.S.’s right to religious freedom would extend to her decision that she would not avail herself of that exception in this particular situation. If testifying without the niqab – perhaps in modified circumstances, including, if need be, the exclusion of the male public except for the accused and counsel – would fall within the boundary of the exception that N.S. has recognized to her requirement to wear a niqab in public, requiring her to remove that niqab to testify, even if she did not want to do so, would not interfere with her ability to act in accordance with her personal religious beliefs.

The court then set out the approach a preliminary inquiry judge may take in reconciling these rights. First, they would determine whether the course of action is religiously motivated, and whether the claimant’s religious beliefs are sincerely held. If the judge is satisfied that the answer to these questions is in the affirmative, they must then determine the level of interference with the accused’s ability to conduct a cross-examination.

If the judge is satisfied that both parties’ claims are sufficiently engaged, the judge must try to reconcile the rights by first trying to give effect to both. The court noted that context becomes important at this stage, because the trier of fact must consider the interference with assessments based on demeanour, the nature of the proceeding, the forum where the trial will be conducted, and the nature of the evidence that will be given by the evidence. The court also noted that the nature of the defence, and any grounds that link the ability to see the witness’s face with the defence’s ability to make full answer and defence, will also configure into this contextual analysis.

As part of this context-specific analysis, the court also found that the preliminary inquiry judge must take other constitutional values and societal interests into account, such as minority rights and access to justice. The court noted that there are public interest arguments for and against wearing a niqab when testifying in a trial; the inability to protect their religious beliefs could make Muslin women less likely to lay criminal charges for fear of testifying in court. Although a trier of fact may not be able to give full voice to all of these diverse and competing interests, the court noted that they should be acknowledged and considered in reaching a decision.

In trying to reconcile these rights, preliminary inquiry judges would also have the option of “constructive compromises,” where accommodations such as an all-female court staff and female judge can be used to address both concerns.

The Court of Appeal also left the door open to the possibility that efforts to reconcile the rights of the witness and the accused may fail. In these cases, the court noted:

If the judge concludes that the wearing of the niqab in all of the circumstances would infringe the accused’s right to make full answer and defence, the right must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab.

The Court of Appeal agreed with the Superior Court that the preliminary inquiry judge’s order should be quashed, and that the matter should be remitted to the judge to conduct a proper inquiry into the issue.

A Fine Balance

In N.S., the court manages to sketch out a well-balanced approach to the issues of witnesses in niqabs, placing the focus on a balancing of rights. Given the circumstances of a judicial proceeding, the court struck an appropriate balance. This approach allows equal consideration of the rights of both parties, and the trier of fact is left with the responsibility of reaching a contextual compromise.

Although the current controversy about the merits and appropriateness of wearing niqabs and hijabs in public in Canada will continue, the court was right to decouple the issue in the case at bar from the broader public debate and should be applauded for their efforts in doing so.

It remains to be seen if N.S. will be appealed to the Supreme Court of Canada. Quite frankly, it doesn’t need to be. In articulating a framework for judges who are faced with similar conflicts in the future, the Court of Appeal has done an excellent job of striking the right balance.

The issue of accommodating this particular style of dress (there is some debate as to whether it is a religious practice) has been simmering for a few years, particularly as it relates to voting. Elections Canada’s policy has been to allow women wearing the veil to vote without showing their face. When this came to light during a series of by-elections in 2007, all parties except the NDP urged the elections body to change its stance. A similar issue arose in Quebec’s 2007 provincial election.

Law professors did not wait long before predicting a court challenge to Bill 94, if it becomes law, and weighing its chances for success. This issue could have come right from the pages of a law school exam or moot competition, as  the wide array of issues and strong arguments on either side make it difficult to say with any certainty whether the law runs afoul of Supreme Court doctrines on freedom of religion and equality rights.

A framework for debate

It is easy to interpret Bill 94 as the government targeting a religious group, in this case Muslims, for differential treatment on the basis of a belief that the government happens to disagree with. That, in my view, is too simplistic. There is a contingent of people who see the practice as a symbol of the oppression of women; on that view, the state could be justified in banning the wearing of the niqab as a form of protecting women’s rights. On the other end is a civil liberties argument that says that the government should have no place in dictating what people may and may not wear. Clearly, there is also a freedom of religion argument as well.

Debates over cultural and religious practices often risk painting disparate groups with incredibly broad brushes.  On the issue of Bill 94 singling out “the Muslim community” for differential treatment, however, it’s worth noting that in the fall of 2009 the Muslim Canadian Congress asked the federal government to ban the burqa and the niqab.  The MCC suggests the wearing of the veil is rooted more in Middle Eastern culture than in religious teaching, and argues there is nothing in the Quran that requires women to cover their faces. Sheikh Muhammad Sayyid Tantawi, dean of the Al-Azhar schools in Egypt and one of that country’s top scholars on Islam, has made a similar point.  He argues the niqab “is a tradition and has nothing to do with Islam”, and has vowed to ban it in the Al-Azhar schools.

A final relevant fact involves numbers. The Muslim Council of Montreal (quoted in the Globe story linked to above) suggests that there may be as few as 25 people who don the full facial veil in Quebec. Similar estimates appeared in the other stories covering the issue.

Might the case succeed?
Whether any challenge would proceed or be successful on a s. 2(a) (freedom of religion) or s. 15(1) (discrimination) basis is an open question.  Neither case appears to lean strongly one way or the other.

In rebutting a challenge on freedom of religion grounds, the government could lead evidence, such as testimony from scholars such as Egypt’s Tantawi and statements from bodies like the Muslim Canadian Congress, suggesting that banning the niquab is not even a religious issue.  While interesting, on a s. 2(a) challenge such evidence would be beside the point. A majority of the Supreme Court in Syndicat Northcrest v. Amselem, 2004 SCC 47, held that conforming to any sort of widely held religious doctrine was unnecessary to ground a freedom of religion claim:

[A]t the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief.

Wearing the niqab surely meets this test, meaning that the protection of s. 2(a) would potentially be engaged. Accordingly, the critical question would be whether the proposed law infringes that s. 2(a) right.

The Court has held the government can legislate in a way that interferes with the ability of a person to act in accordance with his or her religious beliefs, if the interference is trivial or insubstantial. In determining whether that threshold is met, the majority in Amselem held that freedom of religion “may be made subject to overriding societal concerns.”

The government would then need to identify which overriding societal concerns make s. 2(a) inapplicable. At least in the context of the delivery of health care or other government services that require identification for reasons of security or fraud prevention, this would likely be a fairly straightforward burden to meet. Once an identification has been made in such a transaction, however, it becomes harder to justify the ban in the actual provision of the service. Concerning education, it’s at least arguable that a secular state should be able to impose standards on receiving a primary and secondary school education that conformed with societal views on the proper place of religion. Of course, this argument would be more tenable if the government banned all religious symbols from public schools, including crosses and kippas. Alternatively, it could be argued that the primary school context requires face-to-face communication and eye contact between pupils and teachers. Whether either of those arguments would be viable in a university or college context is the more difficult question.

On the s. 15(1) issue, the Court recently stated in R. v. Kapp, 2008 SCC 41, that a distinction violates s. 15(1) when it creates a disadvantage by perpetuating prejudice or stereotyping. On the first element (disadvantage) a court is to consider any pre-exisiting disadvantage, the ameliorative purpose or effect of the impugned legislation, and the nature and scope of the interest affected by the legislation. On the second element, the correspondence between the alleged discrimination and the claimant’s actual characteristics or circumstances is considered.

Does preventing a group from accessing government services because of its manner of dress perpetuate prejudice or stereotyping? It may, but that jumps ahead of the question of whether s. 15(1) is even applicable. Again, the answer goes back to whether the practice is religious or cultural. It’s not clear that the Amselem approach applies here; thus, the government may be able to legitimately lead evidence showing the practice of wearing a niqab is a cultural and not a religious exercise. If such evidence is accepted by a court, then the argument effectively becomes “the government is preventing me from exercising my own cultural practices.” Culture is not an enumerated ground in s. 15(1), and to my knowledge no court decision has suggested that it is an analogous ground. The Charter doesn’t necessarily protect cultural practices in the same way that it does religious ones; however, if that potential barrier is set aside, then a court would likely focus on the nature and scope of the interest affected by the legislation. Here, access to a vast number of government services is at stake. That, in and of itself, may be enough to support a discrimination finding.

Section 1

If the government fails on one or both Charter grounds, it could still justify the law under section 1. That involves demonstrating a pressing and substantial objective, a rational connection between the means chosen and the objective, and that the rights infringement is proportional to the law’s benefits. Daniel Haboucha over at McGill’s Legal Frontiers blog has canvassed the s. 1 issues, and concluded that the government would have difficulty meeting the last stage of the test.

The government may argue that part of the reason for enacting this legislation is to promote the integration of immigrants into Quebec society. The counterpoint is that, if a woman believes that her face must be covered whenever in the presence of unrelated men and a consequence of not respecting this requirement will be ostracization from her community, she may choose to simply stay at home. Wishing her children to respect the same beliefs, she may choose to send them to a religious private school instead of a public one. None of this is serving the cause of integration. (Indeed, this argument is supported by a recent report about a second woman who was expelled from French classes in Quebec)  Similarly, on the proportionality argument: if the numbers given by the Muslim Council of Montreal are accurate, is it really necessary to enact such a law to deal with 25 people in a way that applies only to those 25 people?

In any event, based on the Supreme Court’s approach to ss. 2(a) and 15(1), it’s neither a foregone conclusion that Bill 94 violates the Charter nor is the legislation definitively Charter-compliant. Of course, this is why these sorts of issues end up in our courts, and possibly in the Supreme Court. It does seem odd, though, that for all the rhetoric, time, and money that various parties are prepared to expend on the issue, the end result might simply be nine people in Ottawa deciding whether 25 people can access government services dressed as they wish. I’m all for a secular government, but if the Quebec legislature is trying to promote and protect the values of Quebec society, it may want to pursue other avenues to achieve its goal.

Britain has over 7,000 publicly financed religious schools. Under the Equality Act of 2006, such schools are allowed to give preference in busy years to applicants of the school’s own faith, using criteria determined by a designated religious authority. The Jew’s Free School (JFS), a religious Jewish school, traditionally receives far more applicants than it accepts. The school’s present policy is to give priority to children who are recognized as Jewish by the Office of the Chief Rabbi (OCR).

M is the child of a father who is Jewish by birth, and a mother who underwent the Progressive Jewish conversion process. That process is not recognized by the OCR who requires conversion take place through the Orthodox Jewish procedure. As such, since Orthodox Judaism only recognizes a child as Jewish if his mother is Jewish, and according to Orthodox Judaism the mother never properly “converted”, M was not regarded as Jewish and his application was denied.

M’s father E alleges the refusal to admit M to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground of both his and his mother’s ethnicity. JFS defends its action, stating that the criterion used to select students is purely religious and not ethnic in nature. At trial, the High Court of Justice agreed. The Court of Appeal overturned that ruling, on the basis that the admissions test was ethnic in nature and thus discriminatory. Since the test concerned the status of M’s mother rather that M’s personal religious practice, the test could not be said to be purely religious.

Comments

The court’s ruling reveals several problematic issues. To begin with, there is considerable unease with the court’s foray into the religious realm. As Lord Sacks wrote following the court’s decision:

“An English court has declared this rule racist, and since this is an essential element of Jewish law, it is in effect declaring Judaism racist. To be told now that Judaism is racist is distressing. To confuse religion and race is a mistake.”

 Under Orthodox Jewish belief, one’s religious practices are largely irrelevant to their Jewish identity. As Rabbi Yitzchak Shochet famously said, “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish”. Conversely, one can be most devout of faith, but if not born Jewish (or “properly” converted) one would not be perceived as such by the Orthodox community. Ethnicity and the Orthodox faith are inextricably intertwined, and the court’s attempt to separate ethnicity and religious practice inherently misunderstands the relationship between the two.

Be that as it may, the argument is made –not without footing– that the private religious laws must yield when there is an adverse impact on social welfare. The problem is the Court of Appeals’ conclusion that the admission criterion was an ethnic test is simply untenable. The first difficulty is understanding what ethnicity means. The Court of Appeal, when attempting to define what constitutes racial discrimination, refers to the House of Lords decision Mandla v. Dowell-Lee, [1983] 2 AC 548. In that case, Lord Fraser notes that an ethnic group is defined as a distinct community sharing certain characteristics. He goes on to state that a group is defined by shared characteristics, and membership in such a group is also open to members joining through a conversion process. Following that reasoning, the Court of Appeal concludes that (a) Jews constitute a racial group defined by ethnic origin and additionally by conversion and (b) to discriminate against a person on the ground that he or someone else is not Jewish is to discriminate on racial grounds.

Two points are relevant here. First, the court conveniently does not take notice of the following line from Mandla:

Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.

The very issue of the case at hand is that the group (the Orthodox Jewish community) had not accepted M’s mother into the group by virtue of the wrong conversion process. Second, to discriminate on ethnic or racial grounds implies an almost immutable, or constructively immutable, characteristic that serves as the basis of the discrimination.  In contrast, if M’s mother had undergone the Orthodox conversion process, she would have been recognized as Jewish. There was nothing inherently “ethnic” in the decision; rather, it was the practice which formed the basis for inclusion in the group. The conversion process itself is an inherently religious practice, rather than ethnic.  A possible response is that focusing on the mother’s actions rather than M’s means that the criterion is not religious in nature. Yet, were JFS to deny a child admission on the grounds his or her parents were born Jewish but did not practice religiously, can it be said that the decision would be “ethnic” rather than religious? My point is solely that the OCR took issue not with identity, but with the practice of converting Progressive rather than Orthodox; as such, the issue goes to religion rather than ethnicity. In the alternative, the two are so deeply intertwined that any religious criterion is by definition discriminatory.

A further response is that, by accepting the government’s money, JFS’ admissions policy became a social policy rather than a religious policy. If a school disliked the conditions associated with funding, it would be free to operate privately and determine their own admissions policy. That being said, it is important to examine the social goals the government is advancing. The Secretary of State for Education is intervening on behalf of the respondents, JFS, to argue that a faith-based admission criterion pursues a legitimate aim. The underlying policy purpose is to add to the diversity of choice for parents, and to enable children to be educated within the State sector in accordance with the values of their faith. Since such criterion are the only way to further that purpose, finding them discriminatory would take away from this social purpose. Additionally, Parliament has implicitly endorsed this practice through the enactment of the Equality Act of 2006, despite its potentially discriminatory effects. Accordingly, the appropriate balancing of competing social interests should be a matter for Parliament to decide, rather than the courts. The faith-based admission criterion at issue, therefore, in fact supports sound social policy rather than running contrary to it.

Comparative Law

A similar case occurred during the late 1980s in the Netherlands. In the Maimonides case, the Hoge Raad (the highest civil law court) accepted that an Orthodox Jewish school could exclude a boy from a non-religious family because it was based on consistent policy directly related to the religious foundation of the school. It would seem that a “religious” but non-Jewish individual could also be excluded because it doesn’t fit within the religious foundation of the school.

In Canada, the courts have been prepared to value religious rights over certain other social policy concerns. In Dhillon v. British Columbia, [1999] B.C.H.R.T.D. No. 25, for example, the court held the religious rights of Sikhs to wear a turban trumps other safety concerns behind the helmet laws at issue. The fact that most religious education is not eligible for public funding (see Adler v. Ontario, 1996 CanLII 148 (S.C.C.)) largely prevents the issue from arising. If such an issue did arise, legislation similar to the Equality Act of 2006 would likely be held to infringe s. 15 because religion has been held to be a constructively immutable ground (as in Corbriere v. Canada, [1999] 2 S.C.R. 203.) While the Secretary of State points to an important policy objective, it is doubtful in the Canadian context whether similar legislation would constitute a minimal impairment under the proportionality test of s. 1.

Conclusion

If the newly minted Supreme Court is looking to make its mark, it has such an opportunity when it releases judgment on this case. I, for one, am curious to see which direction the Court will choose to take: whether it will sit back and largely defer to Parliament’s social policy objectives, or whether it will try to carve out the appropriate spheres religion plays in society. The clash between different religious conceptions is almost always inevitable. In Canada, we pride ourselves on a widely diverse culture that is willing to accept a broad spectrum of beliefs. In the quest to increase inclusiveness, however, we inevitably run up against religions that by definition are exclusive. By granting equality with one hand, consequently we take away autonomy with the other. Canada –as with much of the world– watches this case with bated breath.

For years, the Hutterites of Wilson Colony in Alberta were granted an exemption from the photographic requirement on driver’s licences due to their religious beliefs. In 2003, Alberta adopted a new regulation making the photograph on the driver’s licence mandatory for everyone. The Alberta government said that the incidence of identity theft was on the rise. It said that the national (or even global) problem of identity theft requires a one-size-fits-all approach. And it said that, since other provinces will soon be adopting mandatory photo licence requirements, Alberta needs to stay with the pack for fear of becoming a haven for identity thieves.

I am not convinced that the Supreme Court of Canada, in accepting the Alberta government’s justifications, got it right. However, in an interesting sidelight, the Court engaged in a subtle drawing-in of the “conscience” aspect of s. 2(a) of the Canadian Charter of Rights and Freedoms. The Court’s statements give us an opportunity to think more thoroughly about this particular freedom.

Almost from the Charter’s beginnings in 1982, a constant theme in s. 2(a) jurisprudence has been a relative lack of consideration given to the word “conscience” as a fundamental freedom. Somewhat strangely in Wilson Colony, given the parties’ admission on the freedom of religion issue under s. 2(a), all three opinions send a reminder that the s. 2(a) right contains conscience in addition to religion.

For the majority, McLachlin C.J. acknowledges the plethora of different religions and practices in a pluralist world, and finds that it is “inevitable that some … will come into conflict with laws … of general application.” She continues (at para. 90):

this pluralistic context also includes ‘atheists, agnostics, sceptics and the unconcerned.’ Their interests are equally protected by s. 2(a)… In judging the seriousness of the limit in a particular case, the perspective of the religious or conscientious claimant is important.

On its face, the majority’s recognition of this right of conscience is uncontroversial; it merely reflects the reality that the non-religious may also find protection under s. 2(a), albeit protection that may also be overborne by legitimate government interests. A more favourable reading would see McLachlan C.J.’s statement as part of a slow, albeit sometimes jerky, move to reveal a different kind of s. 2(a)—one seen clearly by Wilson J. in Morgentaler, but which has been clouded by majority decisions—where conscience takes a rightful place alongside religion as an independent and significant freedom.

Abella J. also devotes some space to discussing conscience. Her review of it is, paradoxically, more conservative and more progressive than McLachlin C.J.’s majority view. After citing Dickson C.J.’s oft-quoted statement in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, that “an emphasis on individual conscience and individual judgment…lies at the heart of our democratic political tradition,” Abella J. goes on to quote him further (at para. 127, quoting Big M Drug Mart at 346):

It is the centrality of the rights associated with freedom of individual conscience that ‘underlies their designation in the Canadian Charter of Rights and Freedoms as “fundamental”. They are the sine qua non of the political tradition underlying the Charter.’

She continues with a number of quotations from Big M Drug Mart and the European Court of Human Rights in Kokkinakis v. Greece, Judgment of 25 May 1993, Series A no. 260-A, that refer to freedom of conscience and the principle of individual conscience. One could say that she offers nothing new regarding conscience, relying heavily on past Supreme Court precedent, and less so on European jurisprudence. That she reminds us of the Court’s earlier discussions on conscience, however, is important in itself (again, unfortunately, not referring to Wilson J.’s lengthy exegesis on conscience in Morgentaler).

It is LeBel J., however, who is the most enigmatic, displaying unease with the entire concept of s. 2(a)’s religious freedom (at para. 180):

Perhaps, courts will never be able to explain in a complete and satisfactory manner the meaning of religion for the purposes of the Charter. One might have thought that the guarantee of freedom of opinion, freedom of conscience, freedom of expression and freedom of association could very well have been sufficient to protect freedom of religion. But the framers of the Charter thought fit to incorporate into the Charter an express guarantee of freedom of religion, which must be given meaning and effect.

This is a very telling statement. LeBel J. seems to be wishing that freedom of religion did not need to exist. For him, certainly, the other fundamental freedoms contained in s. 2 almost cover the field of religion by proxy. It strongly suggests, at the very least, that conscience must be different from religion. For those pining for a resurrection of freedom of conscience, it gives hope.

In his article, “Religious Commitment and Identity: Syndicat Northcrest v. Amselem,” (2005) 29 Sup. Ct. L. Rev. (2d) 201, Richard Moon argues that after the Supreme Court’s wide-ranging discussion in Amselem, the protection given to conscience seems to be of a lower order than that given to religion. In his view, the Court has determined that religious beliefs and practices are different from secular ones, deserve special protection and accommodation, and can only be restricted for compelling reasons. It is highly unlikely, he argues, that any court will extend protection to any belief or practice that an individual might consider important or valuable, but not obligatory, and that does not have some connection to moral duty (Moon at 215). For Moon, what may make religion special, and different from “mere” conscience, is that religious beliefs and practices connect individuals to cultural communities and are part of deeply-rooted cultural identities (Moon at 216).

This is a useful distinction, but ultimately inadequate. Rabid hockey and soccer fans the world over (for that matter, many fans of many sports) are both connected to a community (and it would be easy to see that as a “cultural” community) that is deeply rooted in their identity. In Canada, the “national sport” of hockey is the subject of a number of university courses, most comparing it to a form of organized religion; see Carly Weeks, “Holy Hockey sticks!” The Globe and Mail (24 October 2008) L3. One could guess that the same would hold true for other communities, both admired and unsettling, such as Hell’s Angels motorcycle gangs and online gaming and social networking communities.

An independent freedom of conscience may help bring back the very point of having religion and religious freedom. By insinuating that the idea of conscience as an independent right remains alive, the Supreme Court has, in Wilson Colony, opened its eyes again to Wilson J.’s Morgentaler opinion. In particular, if LeBel J.’s words are taken to heart—if freedom of conscience is not sufficient to protect religion, even in combination with the other s. 2 freedoms—then the converse could also be true: freedom of religion is insufficient to cover conscientious freedom. That may be reason enough to give the framers of the Charter, who thought it necessary to include an express guarantee of conscience, some credit, and to give “conscience” a measure of respect.

The Supreme Court of Canada’s recent ruling in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, has already inspired much critical commentary, both in the mainstream media and on TheCourt.ca because of its atypically distressing outcome for rights claimants and dubious appraisal in a popular newspaper. What may prove of especial interest to academics, however, is the ruling’s brief engagement with the Charter’s fundamental freedom of conscience.

Despite the clear wording of the Charter promising everyone “freedom of conscience and religion”, the Supreme Court has only ever heard appeals which primarily engage the latter – that is, the freedom to exercise beliefs religiously motivated. It is still yet to hear a freedom of conscience challenge which does not also involve religion.

Indeed, duly appreciating that it may be seldom asked to do so, the Supreme Court has very rarely engaged freedom of conscience as functionally distinct from freedom of religion. Its limited comments on the subject have often come in minority judgments or otherwise in obiter. Although Alberta v. Hutterian Brethren does not officially endorse prevailing interpretations of freedom of conscience, I would argue that its decision does accord with the line of cases considering the content of our hitherto unexplored s. 2(a) guarantee.

Contextualizing Conscience in Big M Drug Mart

A logical starting point in defining the guarantee is the seminal R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, a judgment which grounds freedom of conscience in its civil libertarian context. For the majority, Dickson C.J.C. finds that

[t]he values that underlie our political and philosophical traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

Here, Dickson C.J.C. rationalizes s. 2(a)’s protection in the need for all citizens to think freely and make independent, informed decisions, as well as for society to tolerate such diversity, in the “political and philosophical tradition” of our liberal democracy. As his statement extends protection to “whatever” beliefs our consciences dictate, Dickson C.J.C. indirectly suggests that s. 2(a)’s rationale would be undermined if the state promoted a diversity of religious beliefs while simultaneously suppressing other “conscientious” beliefs, the precise content of which only begins to emerge in subsequent cases.

Defining Conscience in Morgentaler

The Supreme Court’s next engagement with the freedom of conscience guarantee is easily its most explicit and may be its most enlightening – that is, Wilson J.’s famous concurring opinion in R. v. Morgentaler, [1988] 1 S.C.R. 30.

Recalling Dickson C.J.C.’s finding in Big M, she argues that rights associated with the freedom of conscience are central both “to basic beliefs about human worth and dignity as well as to a free and democratic political system”. Despite the Morgentaler majority’s view that religious exercise is the paradigmatic example of conscientiously-held beliefs protected by the Charter, Wilson J. does not believe that this precludes personal moralities unmotivated by religion from receiving such benefit. Indeed, she maintains that such moralities “[...] are equally protected by freedom of conscience in s. 2(a).”

Although lacking precedential weight, these statements define the content of the s. 2(a) guarantee as both encompassing religious belief and extending well beyond it to include “whatever” other secular moralities our consciences dictate. Given the facts of Morgentaler, one such morality could support a conscientiously-held belief in the privacy rights of women against the state, while others would seem to accommodate a variety of social, cultural, and political perspectives, including atheism, agnosticism, skepticism, and uncertainty.

Recognizing Conscience in Rodriguez

Wilson J.’s construction of s. 2(a) is provided some support by Lamer C.J.C.’s dissenting opinion in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. Without citing Wilson J., he effectively adopts her definition of freedom of conscience as the prevailing wisdom, declaring that “the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions,” as well as that “an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition.”

Lamer C.J.C.’s comments are exceptional not so much for their content, which substantially borrows from Big M and Morgentaler, but for the fact that they constitute the Supreme Court’s second and only other attempt to explicitly distinguish conscience from religion.

While I recognize that it may never have been directed to do so, the Supreme Court’s failure to provide an authoritative interpretation of the freedom of conscience guarantee seems exceptional considering the political primacy of the values entrenched in s. 2(a) of the Charter.

Further, the Supreme Court’s reticence, whether intentional or not, to clearly interpret the guarantee has resulted in a number of lower courts considering “freedom of conscience and religion” to be tautologous, as if its terms are incapable of independent, although related, meaning. According with Wilson J.’s opinion, my estimation is that freedom of conscience both encompasses freedom of religion and extends beyond it to protect any number of individual, secular belief systems, with the only caveat being that the conscientious exercise of said belief systems must not trench upon the ability of others to exercise their own beliefs.

Recalling Conscience in Alberta v. Hutterian Brethren

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, is the most recent Supreme Court decision navigating freedom of conscience. While it does not especially clarify the Big M, Morgentaler, and Rodriguez line of reasoning, Abella J.’s minority opinion recalls these cases’ characterization of the freedom in her citation from Kokkinakis v. Greece, Series A no. 260-A, a European Court of Human Rights judgment which found that

[…] freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

This finding in Kokkinakis corroborates evidence from the Canadian cases suggesting that s. 2(a) must protect those conscious of secularism, including “atheists, agnostics, sceptics and the unconcerned”, because a truly free and pluralistic society is one which can accommodate a diversity of opinions.

Although compelling, Kokkinakis is ultimately a foreign judgment cited as persuasive, non-binding authority by a justice writing in dissent. Without precedential value, Abella J. does not extend Kokkinakis to the Canadian context and otherwise declines the opportunity to consider the content of the freedom of conscience guarantee, perhaps understandably, again, because she was not directed to do so in Alberta v. Hutterian Brethren‘s pleadings.

Conclusion

While it may require a breach of judicial convention, I believe that the Supreme Court should be proactive in clarifying the Charter’s substantive guarantees, and s. 2(a)’s freedom of conscience is one of the few remaining which still lack meaningful and authoritative interpretation. Affirming the freedom’s protection of secular moralities would accord with its brief jurisprudential history, but most importantly, provide recourse for potential rights claimants to defend their conscientiously-held beliefs from undue government intrusion.

The Supreme Court has finally released judgment in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 – a case closely watched by constitutional scholars and popular media for its engagement with the Charter’s s. 2(a) freedom of religion guarantee. Very unfortunately, the outcome may signal to members of some religious faiths that their sincere beliefs and practices, incommensurate with broad social legislation, may not be guaranteed at all.

The case concerns Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6, and its long-standing requirement that all drivers of motor vehicles on highways hold a valid photographic licence. Since 1974, the requirement was excepted for individuals who objected to having their photos taken on religious grounds, until a 2003 amendment made the requirement universal. The primary reason for doing so was to ensure the integrity of facial recognition software used in combating identity-related fraud.

The claimant members of the Wilson Colony of Hutterian Brethren maintain a communal and self-sufficient lifestyle in rural Alberta. Its members believe that the Second Commandment, forbidding idolatry, prohibits them having photographs or other likenesses taken of them. That belief and the Province’s universal licensing scheme would seem to be in conflict, necessitating that Colony members cease highway driving in adherence to their faith or continue highway driving despite it. The question is, of course, whether compelling such a choice would withstand Charter scrutiny, and is one of considerable significance as Colony members contend that highway transportation is integral to their fulfilling responsibilities to the community.

In a rare 4-3 decision, the Supreme Court narrowly found for the Province, leaving this writer distressed by the majority’s atypical indifference to religious freedoms in the wake of an unconvincing legislative design.

Justifying the Charter Infringement

At issue in this case is not whether Alberta’s Traffic Safety Act violated s. 2(a) of the Charter by encroaching upon the Wilson Colony’s sincerely-held religious beliefs – indeed, the lower courts proceeded on the assumption that it had.

Rather, at issue is whether such encroachment could be saved by s. 1 as a reasonable limit, demonstrably justified in a free and democratic society. For the majority, McLachlin C.J.C. answered in the affirmative, while Abella J., LeBel J., and Fish J. disagreed in separate dissents.

Prescribed by Law

Little debate surrounded the preliminary inquiry of the s. 1 analysis, considering whether the impugned measure is sufficiently accessible and intelligible to be “prescribed by law”. McLachlin C.J.C. dispatches this question routinely and Abella J. does not address it, both keenly aware that this case engages novel legal issues with respect to other elements of s. 1.

Qualifying the Measure’s Objective

The high court then proceeds with the Oakes test, designed to balance the benefits and detriments flowing from the infringing measure.

In the first stage, both McLachlin C.J.C. and Abella J. accept that the universal photo requirement’s objective -  to compile a database of facial photos ensuring that each driver’s licence is connected to a single individual and each individual is connected to a single licence, thereby minimizing opportunities for identity-related fraud – is pressing and substantial enough to justify limits on Charter rights. This is an assertion that I willingly concede.

Determining Rational Connection

Next, McLachlin C.J.C. and Abella J. similarly accept that the universal photo requirement is rationally connected to the goal of alleviating risks of identity theft. Certainly, a comprehensive facial database would create significant obstacles for a wrongdoer seeking identification in someone else’s name.

Seeking Less Intrusive Means

Where the two justices part company is with regard to the minimal impairment stage of the Oakes test, assessing why less intrusive and equally effective legislative measures than those impugned, if they exist, were not adopted.

The Wilson Colony proposes such a measure – a new exception to the Traffic Safety Act which permits them driver’s licences without photos, stamped with the words, “Not to be used for identification purposes”. The stamp could feasibly prevent a person who assumes physical possession of the special licence from using it as a breeder document.

While acknowledging that the Colony’s proposal would fully comply with s. 2(a) and eliminate some opportunities for identity fraud, McLachlin C.J.C. ultimately rebuffs it as impeding the Province’s plan. “An exemption for an unspecified number of religious objectors,” she writes, “would mean that the one-to-one correspondence between issued licences and photos in the data bank would be lost.” Since only those measures capable of achieving the government objective are evaluated at this stage, McLachlin C.J.C. cursorily dismisses the Colony’s proposal.

At first blush, this assessment seems to overstate the impacts of such a proposal on the integrity of the driver’s licensing system. None of the evidence suggests that exempting a few hundred Hutterites from the otherwise comprehensive photographic database will compromise its utility in any discernible way – “one-to-one correspondence” between hundreds of thousands of unexempted licences and photographs may still proceed. While the universal requirement would fulfil the Province’s objective more perfectly than the Colony’s proposal, the courts need not only consider perfect alternatives, but reasonable ones. In my view, risks of identity theft are still much alleviated by a scheme respecting the sincere beliefs of the Colony.

Assessing Proportionality

The final stage of the Oakes test is the proportionality determination, weighing the salutary and deleterious effects of the impugned legislation in a balance.

For McLachlin C.J.C., a facial comparison system representing all drivers would more effectively combat identity theft than a system excepting religious objectors, “though it is difficult to quantify in exact terms how much risk of fraud would result from permitted exemptions.”

Abella J., by contrast, makes a point of quantifying risks flowing from such exemptions. She reveals that the Province presented no evidence that special licences granted between 1974 and 2003 in any way compromised the integrity of the licensing system. Personally, I cannot imagine the situation would be different if special licences were reissued, especially since approximately 250 Colony members would require them.

Not to be assumptive, but given that these 250 members of the Wilson Colony live “an austere, religiously motivated existence” in which divorce, birth control, smoking, drinking, and firearms are prohibited, voting and public office are abstained from, the old and infirm are cared for, and government assistance is not accepted - all in accordance with a strict code of ethics founded in Christian Scripture - I do not expect that these 250 are very likely to exploit renewed licenses for criminal purposes. Abella J. would seem to agree, as “Hutterites apparently commit no serious crimes.”

Likewise, with such conspicuous religious practices, I do not expect that members of the Wilson Colony would make the easiest or most logical targets of fraud by other wrongdoers. The risks attendant upon creating an exception for Colony members seem negligible.

These risks must also be contextualized with respect to the 700,000+ Albertans who do not hold a driver’s licence, and are thus not profiled by the state’s facial recognition software.  In this light, the salutary benefits of a system requiring photographic licenses from all drivers, as opposed to one exempting a relative few religious objectors, are further diminished.

Tipping the balance scale are the deleterious effects of the impugned measure on the Charter rights of the claimants. In what may be McLachlin C.J.C.’s most distressing finding, she recognizes that the Traffic Safety Act imposes a cost on those choosing not to have their photos taken – not being able to drive on the highway – but that the cost “does not rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious practice.” After all, McLachlin C.J.C. opines that Wilson Colony members are free to arrange third party transportation to receive social services, as “driving automobiles on highways is not a right, but a privilege.”

I fail to appreciate how hiring third party drivers - the Colony’s only recourse because public transportation does not service its rural locale - is a viable option for a Hutterite community. To depend on outsiders in coordinating medical care, commercial dealings, volunteerism, and other exchanges requiring highway travel would seriously undermine the Colony’s autonomous integrity, while creating an unacceptable financial burden on its members.

Further, and while I appreciate that driving on highways is the “privilege” bestowed upon earning a requisite licence, McLachlin C.J.C. seems not to recognize how in our increasingly globalized society, cities, towns, essential social services, and connective transportation networks are physically situated such that it will be extremely onerous, if not impossible, for the Colony to fulfil its communal responsibilities without using highways.

Its members’ circumstance is also unlike that of the 700,000+ drivers in Alberta lacking licence privileges, as the vast majority of those do not live in hermetic communities populated by fellow objectors, isolated from other licensees and valuing self-sufficiency.

In my view, the universal photo requirement uniquely coerces the Wilson Colony to choose between ceasing driving and compromising their faith. Such an inappropriate choice cannot but weigh heavily in balancing the impugned measure’s salutary and deleterious effects on the proportionality scale. Considering that the social benefits of the requirement are marginal at best, I would have found with Abella J. that the relevant provisions of Traffic Safety Act contravene the Charter.

Conclusion

Upon reviewing Alberta v. Hutterian Brethren, what becomes evident is the Supreme Court’s desire to protect Albertans from the risks associated with identity-related fraud despite the great cost to members of the Wilson Colony of not having their religious and democratic rights respected.  Our court would have done well to find that cost unsupportable.

On Friday, the Supreme Court of Canada released judgment in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, a case which navigates the complicated interplay of a mature minor’s right to autonomous decision-making and the state’s responsibility to keep vulnerable children from harm.

The claimant A.C. was two months shy of her 15th birthday when she was admitted to hospital for lower gastrointestinal bleeding, a result of Crohn’s disease. As a devout Jehovah’s Witness, she had previously completed an advance medical directive with specific instructions that she not receive blood transfusions even in situations of an emergency.

Once her condition worsened and she persisted in her refusal to receive blood, the Director of Child and Family Services apprehended her as a child in need of protection under section 25(8) of Manitoba’s Child and Family Services Act, C.C.S.M. c. C80, which enables the courts to order medical treatment “in the best interests” of children under 16 years of age. A treatment order was soon granted and A.C. was administered three units of blood despite her protestations. The transfusions were successful and the claimant made a full recovery, though she soon appealed the treatment order and challenged the constitutionality of legislation permitting it.

A.C. argued that on its face, s. 25(8) grants little deference to the capacity of children to make competent medical decisions. Its far-reaching power presumed that the “best interests” of children 16 or over are best served by allowing their views to be determinative in directing the course of treatment, while those under 16 are presumed to lack sufficient capacity. She argued that so-called “mature minors” who have not yet reached the age distinction set forth by the section but still demonstrate capacity enjoy little right to self-determination in health care.

An Evolving Standard of “Best Interests”

Abella J. for the majority challenges this reductive interpretation. Noting that preambulary clauses of the CFSA stipulate that “the child’s mental, emotional and physical stage of development” as well as “the views and preferences of the child where they can be reasonably ascertained” are matters relevant in determining a child’s “best interests”, she refigures s. 25(8) as operating within a socially responsive scheme.

Specifically, Abella J. appreciates that a child’s transition from childhood to adulthood is a continuous one, with parental rights gradually yielding to the child’s right to autonomous decision-making throughout the course of her development. She proposes that the CFSA’s “best interests” standard operate on a sliding scale of scrutiny, with the child’s views becoming increasingly persuasive as the child achieves the intelligence and awareness required to understand fully the interests engaged.

Such a generous scheme allows for the potentiality that “in some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor” in directing the course of medical treatment. It is, after all, in the child’s best interests to respect her autonomy to the extent that her maturity allows. Given that s. 25(8) operates as such, it withstands constitutional scrutiny and A.C.’s appeal is dismissed.

At first rub, Abella J.’s innovative reading of the CFSA provides the courts an optimal means to gauge when assertions of bodily integrity ought to override public policy. Her formulation takes account of the child’s mental, emotional, and physical needs; her mental, emotional, and physical state of development; her unique views and preferences; as well as her religious heritage. Abella J. herself states that “the best interests standard is necessarily individualistic.”

Extending the “Individualistic” Approach

By her own admission, Abella J.’s “individualistic” approach recalls debate concerning the utility of age distinctions generally. Such distinctions are currently employed to determine when a person can vote, marry, drive, gamble, consume alcohol, own a firearm, sell property, consent to sexual relations, and accrue liability as an adult in criminal and civil contexts, to name a few examples.

I would concede that demarcating ages of maturity is a practical mode of ordering our society, in that procedures for assessing many individuals’ eligibility for public benefits and penalties is expedited by only requiring a brief determination of age, rather than an intricate weighing of the various maturity indicators that Abella J. mandates in s. 25(8) inquiries. However, and despite the specific age chosen in most legal contexts being reasonably related to legislative goals underpinning them, many of these distinctions still seem artificial.

To illustrate my point by way of a personal anecdote, as I was graduating high school in spring of 2004, I distinctly remember chatting with my former Civics teacher about the various personalities running for public office in the imminent federal election. I had also bemoaned my legislated inability to vote for my preferred candidate because I had yet to reach the requisite age, as I believed myself (very immodestly!) to possess sufficient emotional intelligence, depth of experience, and social awareness to make an informed choice. At the same time, I could acknowledge the persuasive reasons informing the state’s age distinction - these legislative goals did reasonably accord with not allowing persons under 18 years to vote. Despite this, I still persisted (rather ambitiously) in writing a letter to my Member of Parliament requesting that some exception to the rule be made. Why not devise a statutory scheme enabling engaged youth to demonstrate their independent political consciousness, adjudicated individualistically by public officials, and thereby earn the right to vote alongside ostensibly more “mature” adults?

With the benefit of hindsight, I now appreciate that my proposal would be a difficult one to implement efficiently, though I do still sympathize with its objectives. Further, its central appeal for a subjective capacity determination is not unlike the Supreme Court’s holding in A.C. v. Manitoba, which does well to afford the courts greater discretion in assessing youths’ maturity. In my view, supplanting age distinctions with individualistic schemes in various legal fora is a most fair and socially responsive means of ordering affairs, if only our scant public resources permitted it.