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.

Just two weeks ago for TheCourt.ca, and by way of a review of the outstanding biography Judging Bertha Wilson: Law as Large as Life, I articulated my defence of President Obama’s declaration to replace retired U.S. Supreme Court Justice David Souter with an “empathetic” person. Less than one week ago, the President confirmed that which many judicial observers had long predicted: Justice Sonia Sotomayor of the Court of Appeals for the Second Circuit would be nominated to fill the vacancy. She would be only the third woman and first Hispanic justice so situated, though she must endure a gruelling confirmation process as political vetters comb her judicial and personal history to assess her qualifications, credibility, and — yes — “empathy”.

Navigating the U.S. Supreme Court’s “Liberal” and “Conservative” Blocs

Nominations to the U.S. Supreme Court, unlike our Supreme Court of Canada, are almost always contentious. One reason is that several high court justices in the U.S. have assumed predictable (at times, overtly political) approaches to constitutional interpretation, so much so that two ideological blocs emerge in many of their most sensitive cases, particularly those involving social issues. Former Justice Souter, as well as Justices Stevens, Ginsburg, and Breyer may be said (very crudely) to have ascribed to a “liberal” interpretive philosophy, which demonstrates greater willingness to check legislative power by recognizing evolving conceptions of rights. The other five justices form a tenuous “conservative” majority on the court, with one justice — Anthony Kennedy — occasionally and errantly siding with the minority in a few key areas (including abortion and same-sex rights).  Any appointment to the U.S. Supreme Court, then, carries with it far-reaching implications because the composition of these voting blocs may be altered, depending on the ideologies of the outgoing and incoming justices.

While it may be premature to forecast the interpretive approach that Justice Sotomayor will adopt if and when her nomination is confirmed — indeed, Souter was appointed by a Republican president in hopes that his approach would accord with that of the more traditionally “conservative” justices — her record suggests that it may be a more reliably “liberal” one. That fact has not gone unnoticed by some Republican commentators who, looking to buttress their tenuous circumstance, have waylaid disparaging accusations against Justice Sotomayor in efforts to impeach her character — accusations which, even in this tense judicial climate, seem extreme. Specifically, flamboyant radio personality Rush Limbaugh and former Speaker of the House Newt Gingrich identify a parsed sentence from one of Sotomayor’s 2001 speeches as revealing her true sensibility.

Impugning Justice Sotomayor

At a symposium honouring the late Judge Mario G. Olmos, Justice Sotomayor delivered an address which acknowledged that dispassionate impartiality is an aspiration, though not always a reality of the judiciary, as gender and national origins necessarily colour judges’ consideration of cases. Expounding in that context, she stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Conservative politicos have been unsparing in their assessment of these words, directing fervent and vitriolic attacks that Justice Sotomayor is far-left, radically feminist, and even a “reverse racist”. Limbaugh went on to say that the “way to get promoted in the Barack Obama administration” is by “hating white people,” likening Sotomayor to former Ku Klux Klan leader David Duke.

Very fortunately, both the Republican National Committee and several Republican senators have distanced themselves from these accusations, opting instead to reserve public judgment until more thorough investigations are underway. They should have gone further, of course, by rebuking Limbaugh and Gingrich as playing an offensive and destructive politics with extremely important issues — not only a lack of diversity in the judiciary, but systemic and institutionalized inequalities that impede access to justice. The preponderance of such comments surrounding an historic high court appointment signals to many that the law itself, manifest in its most final vanguard, is plainly inconsiderate of life at the margins.

The Wise Old Man and the Wise Old Woman

Even if it were not patently unreasonable to characterize Justice Sotomayor’s judicial philosophy from one sentence excised from its context, I believe that the philosophy suggested by that sentence is entirely commensurate with that of a principled jurist.

Consider the U.S. Supreme Court’s recent hearing in Safford United School District No. 1 v. Redding, 08-479, for which it has received considerable criticism — not only from politicians, but also its lone female Justice Ruth Bader Ginsburg — for its apparent failure to “empathize” with a human rights claimant during oral arguments. The case involves a 13-year-old girl who had been strip-searched by high school officials looking for Ibuprofen. Dismayed by the other justices’ apparent minimizing of the girl’s humiliation, Ginsburg was prompted to report,

They have never been a 13-year-old girl. It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood. [...] You know the line that Sandra [Day O'Connor] and I keep repeating … that ‘at the end of the day, a wise old man and a wise old woman reach the same judgment?’ But there are perceptions that we have because we are women. It’s a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive.

Justice Ginsburg’s position is not at all unlike that conveyed by Justice Sotomayor’s comment. Indeed, both do well to appreciate that judges’ unique social and cultural conditioning inevitably shapes their perspectives in some outcomes. Nor is Sotomayor’s statement unlike our former Justice Bertha Wilson’s celebrated pronouncement in R. v. Morgentaler, 1. S. C. R. 30 that in weighing militating factors surrounding a woman’s choice to have an abortion,

It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.

“A wise Latina woman with the richness of her experiences,” conscious of her marginality, may more fully appreciate the psychological, economic, and social consequences of her responses than a white man, unconscious of his privilege. That is not to say that Justice Sotomayor, if confirmed, will always appreciate these consequences in her judgments, or that the white male justices on the U.S. Supreme Court cannot or will not do so — indeed, all of them have demonstrated understanding of the values of different groups — but a Latina on the bench may help better attune the high court to the needs of its increasingly diverse citizenry.

Changing the Tone

Later in that 2001 address, Justice Sotomayor conceded that “I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations.” I would encourage the President and his opposition to persist in inquiring as to the extent of her limitations, as I am sure Justice Sotomayor would concede that differences result from her unique experience, but to please do so in a respectful manner. The “reverse racism” charge seems a transparent attempt at character assassination, compounding current issues of systemic inequality and access to justice while misdirecting Americans eight years in the past. Let us hope that the tenor of discussions improves in weeks to come.

]]> http://www.thecourt.ca/2009/06/01/justice-sotomayor-in-her-own-words/feed/ 0 http://www.thecourt.ca/2009/05/15/reflections-on-the-us-supreme-court-upon-judging-bertha-wilson/ http://www.thecourt.ca/2009/05/15/reflections-on-the-us-supreme-court-upon-judging-bertha-wilson/#comments Fri, 15 May 2009 13:25:12 +0000 Daniel Del Gobbo http://www.thecourt.ca/?p=1070

Introducing Justice Wilson

As anticipation mounts surrounding President Obama’s potential replacement of retiring U.S. Supreme Court Justice David Souter with a female or minority candidate, we have cause to reflect on the increasing diversity of the Canadian judiciary, and specifically, the extraordinary life of one of our own former justices – Bertha Wilson – the first woman and first working-class immigrant appointed to the Supreme Court of Canada. We are fortunate that the famously private and reticent justice consented to a series of taped interviews about her life and work, as the product is the elegantly written and impeccably researched biography, Judging Bertha Wilson: Law as Large as Life by Ellen Anderson.

Born in 1923, Bertha Wernham grew up in the industrial town of Kirkaldy, Scotland, and attended the University of Aberdeen before immigrating to Canada with her husband John Wilson, a Presbyterian minister. Settling in Halifax, she discharged her responsibilities as “clergyman’s wife” with a characteristic sense of obligation, though her natural curiosity and burgeoning intellect soon brought her to enrol in Dalhousie Law School. Dean Horace Read, wary of admitting a thirty-one year old woman with an expressed intention to never practice, notably quipped upon meeting Wilson, “We have no room for dilettantes. Why don’t you just go home and take up crocheting?”

And so began the distinguished legal career of Dalhousie’s most famous alumna, though Wilson’s year in private practice, appointments to the Ontario Court of Appeal, Supreme Court of Canada, and at the helm of the CBA’s Gender Equality Study and Royal Commission on Aboriginal Peoples were indubitably informed by her experiences before. Stringing her inauspicious upbringing and unconventional education through every phase, Anderson paints a cohesive portrait of one of Canada’s most dynamic lives.

Wilson on the Bench: The Advent of the Charter and “Principled Sympathy”

Bertha Wilson’s unique life experiences were an advantage on the bench. Her appointment to the Supreme Court in 1982 coincided almost exactly with the patriation of the Constitution, and the Court needed a judge capable of interpreting the Charter contextually and from a variety of perspectives. Very fortunately, that is exactly what it got.

Long immersed in a culture shaped by Scottish Enlightenment philosophy, Wilson recognized, as Adam Smith did, that the law should shift with the tide of social consensus. Concepts of justice, fairness, rights, and responsibility ought not to be fixed, as if lost to time, but always in a process of becoming. Wilson particularly appreciated the utility of dissents and divergent concurrences in achieving this end, the writing of which she believed, at the expense of projecting judicial unanimity, created alternative pathways for the future refinement of the law. She was a chief architect of our Charter jurisprudence, and in that Charter values have so vitally informed our collective consciousness, her contribution lays the groundwork of expectations shaping Canadian society.

Anderson does well to illustrate Bertha Wilson’s temperament – compassionate yet pragmatic, the justice “lost sympathy as an emotion only to gain it as a principle.” We are struck by an image of Wilson writing reasons – perhaps those in the Bhadauria, Singh, or Morgentaler cases – with an unfailing rationality and uncommon kindness. In the latter decision, she courageously articulated a substantive defence of women’s privacy rights against the state, stating that

[...] the circumstances giving rise to [abortion] can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationships to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.

With Anderson providing such generous excerpts from Morgentaler and her other reasons, Wilson’s judicial persona unfolds from wrapping of her own design. What it reveals is a striking humanity in the law, a real deference to the “whole” of the circumstances motivating litigants and flowing from the resolution of their claims. Wilson had a particularly vivid awareness of life at the margins, and the broad scope of her “principled sympathy” befitted her role as a Supreme Court justice for all Canadians.

A Recommendation for President Obama

Wilson herself had said that before judging, it is necessary to enter into the very skin of the person to be judged, and to make his or her experience part of her own. How peculiar it is that such a seemingly fundamental notion as judging with one’s natural compassion, without the slightest suggestion of bias in favour of vulnerable parties, was recently the subject of controversy in the United States.

President Obama’s expressed intention to replace former Justice Souter with an “empathetic” person was met with vociferous accusations that his words “coded” for judicial activism, or the usurpation of the proper role of elected officials to legislate social policy. The reaction may be partly explained by a unique political climate in the US, as well as pervasive “originalist” conventions of judicial interpretation which are not as amenable to evolving constructions of founding treaties as Canada’s own “living tree” interpretive conventions are.

However, and if I may speak frankly, I believe that any criticism of “empathy” in an adjudicator of human rights, whether referring to one’s character or philosophy, is callous, regressive, and wilfully blind to the inevitabilities of postmodern society in which the opening of borders, blurring of professional and personal, public and private, and evolving standards of reasonableness require that the judiciary be responsive to social change.

I have no doubt that President Obama is aware of the fact, and would encourage him to read Ellen Anderson’s Judging Bertha Wilson: Law as Large as Life in narrowing his shortlist of prospective U.S. Supreme Court justices. It evocatively illustrates how intelligence, conviction, fortuity, and principled sympathy, which may so rarely align in a person, propelled Wilson into the last bastions of male power where she found new ways to flourish. Let us all hope they align again in Souter’s replacement.

]]> http://www.thecourt.ca/2009/05/15/reflections-on-the-us-supreme-court-upon-judging-bertha-wilson/feed/ 1 http://www.thecourt.ca/2008/08/26/%e2%80%9cmy-views-on-the-abortion-issue-are-complex-i-don%e2%80%99t-fall-into-any-of-the%e2%80%a6polar-extremes-on-this-issue%e2%80%9d-2/ http://www.thecourt.ca/2008/08/26/%e2%80%9cmy-views-on-the-abortion-issue-are-complex-i-don%e2%80%99t-fall-into-any-of-the%e2%80%a6polar-extremes-on-this-issue%e2%80%9d-2/#comments Tue, 26 Aug 2008 11:34:06 +0000 Diana Younes http://www.thecourt.ca/2008/08/26/%e2%80%9cmy-views-on-the-abortion-issue-are-complex-i-don%e2%80%99t-fall-into-any-of-the%e2%80%a6polar-extremes-on-this-issue%e2%80%9d-2/ This statement summarizes the personal attitude that Prime Minister Stephen Harper takes on “the abortion issue.” This was during the 2006 election campaign, at a time when the Liberals raised alarm over the Conservatives’ position on abortion. Again, in 2008, with a minority government reportedly at the brink of dissolution, Canadians are witnessing the same limited and polarized discussion (see the recent Dion challenge to Harper here).

An event that enlivened the debate on abortion was the recent appointment of Dr. Henry Morgentaler to the order of Canada. This created so much controversy that Chief Justice Beverly McLachlin was subject to a complaint for chairing the Advisory Council, which recommended Morgentaler to the order. The current discourse on abortion in Canada can be summarized as confrontational rhetoric between pro-life and pro-choice, that is, the right to life of a fetus and the individual right of women to their bodies. While this discussion would have been relevant in 1988; the year Morgentaler and fellow doctors won their case that struck down section 251 of the Criminal Code, today, we might as well contemplate Mr. Harper’s ambiguous statement for what it could mean, not in relation to Mr. Harper or Mr. Dion’s political scores but to the interested persons (used loosely) involved.

The reaction to the Morgentaler affair today is also about how we make law. Canada still has no laws regulating the practice of abortion. This is an outlook that not even the Supreme Court intended in R. v. Morgentaler, [1988] 1 S.C.R. 30. In a 5-2 decision with four separate judgments, the majority merely agreed to strike down section 251 of the Criminal Code. The 1969 Abortion Law required the assent of three members of a therapeutic committee in an accredited hospital to deem the abortion necessary if it would likely endanger the woman’s health or life. Morgentaler’s defense suggested this law infringes on women’s right to freedom of conscious and religion, to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, not to be subjected to any cruel and unusual treatment or punishment, to be equal before and under the law and to equal protection and benefit of the law without discrimination. The constitutional questions before the Supreme Court were the following:

1. Does section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?

2. If section 251 of the Criminal Code infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

3. Is section 251 of the Criminal Code ultra vires the Parliament of Canada?

4. Does section 251 of the Criminal Code violate s. 96 of the Constitution Act, 1867?

5. Does section 251 of the Criminal Code unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?

6. Do sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Charter?

7. If sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Charter, are ss. 605 and 610(3) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

Indeed, Dickson C.J. and Lamer J found the impugned law in violation of the right to security of the person and that it cannot be saved by meeting the procedural standards of fundamental justice. The procedural requirements to section 251 of the Criminal Code were also found to put women’s health at risk because of delays in obtaining the assent of the therapeutic committee, lack of guidelines and availability of accredited hospitals. Beetz and Estey JJ. found that the means to protecting the foetus did more harm than was proportional to the good and thus failed the “reasonable limit clause” test under the Charter. The five judges, including Bertha Wilson – who provided the most comprehensive defense to women’s physical autonomy – did not provide a right to abortion, nor was there a suggestion that another regulatory law cannot necessarily meet constitutional standards.

Three attempts were made by the government of the day to respond to the Supreme Court reasoning, but failed. Our political representative did not go beyond the Supreme Court’s ruling that abortion was not unlawful. And that summarizes the state of the law today and how we got there. The disquiet, outrage and complaints over the law surrounding abortion when no legislation exists in Canada is not surprising. The surprising aspect however, is the oversimplification of the issue that is reduced to the question of to abort or not to abort and summarized in the person of Dr. Morgentaler. Meanwhile, other relevant and broader debates on child rearing responsibility, welfare, health care, affordable housing, shelters, mental health, access to higher education, job parity and minimum wage – all of which deal with structural reforms that may reduce the number of abortions without robbing women the right to choose, are not tackled.

Criminal law can do so much to create a good society and the courts can go only so far in shaping social practices and norms based on a single case. Nearly two decades after the Supreme Court ruling, that single case continues to dominate and limit the discussion. Maybe the ambiguity in Mr. Harper’s statement is not to divert but to point out that the complexity of the issues involved in the act of abortion does not just fit in the current debate on abortion; and that is worth contemplating.

This month, Canadian physician and abortion advocate Henry Morgentaler won the Order of Canada, the country’s highest civilian honour. One year ago, British novelist Salman Rushdie was accorded the U.K. equivalent, a knighthood. The public involvement of both men and the subject matter of their work or activism are quite distinct but their life trajectories share common features. If any lessons can be drawn from comparing the public perceptions that accompanied these trajectories, it is this: Winning a case in the court of public opinion may have little to do with one’s courage to change the status quo, and everything to do with whose status quo one is challenging.

1) Both Morgentaler and Rushdie challenged the status quo and offended the sentiments of a religious establishment and its followers. Rushdie incurred the wrath of devout Muslims when they learned of his blasphemous novel Satanic Verses. He was largely maligned in the press in the Muslim and Arab world. Morgentaler infuriated do-good Christians and was vilified among Christian conservative circles and the right-wing press.

2) Both went through personal trials and tribulations and at times, their lives were in immanent danger. Rushdie was “sentenced” to death by the head of the Iranian state Ayatollah Khomeini in 1989 and lived in hiding for many years fearing for his life. (The U.K. government spent an estimated 10 million pounds to protect him.) Meanwhile, Morgentaler was arrested and jailed by the Canadian authorities, was physically attacked by a disgruntled “pro-life” activist, and one of his abortion clinics was bombed in the early 90’s

3) Both men became household names in the course of their attempt to uphold what they believed in. The Ayatollah’s verdict against the Indian-born novelist catapulted Rushdie to fame and turned his works into international bestsellers. Morgentaler’s refusal to abide by Canadian law and his outspoken public appearances rallied millions to his cause and transformed him into the poster child of the pro-choice camp.

4) Finally, both men eventually won official recognition for their lifetime achievements. However, the apparent commonality between the legacies of both men does not seem to translate to the way their work is debated in public. Knighting Rushdie was reduced from an acknowledgement of a life-time of storytelling to an enlightened celebration of freedom of speech against the dark forces of a backward and intolerant religious doctrine. Reporting his knighthood was rarely mentioned without an immediate reference to the death “fatwa” against him. If there were any dissenting voices or critiques of the wisdom of the decision to knight him (while decrying that of calling for his death), they belonged outside the polity of rational discourse and tolerance of the other, to a place where rage easily supplants reason and anger replaces anxiety, in short, to that imagined community of a monolithic Islamic culture, where disputes are restricted to mob gatherings on the street or to declarations of jihad on obscure websites or by state-sponsored religious institutions. Meanwhile, the decision to anoint Morgentaler as a civil hero was rarely portrayed as a long overdue celebration of women’s rights without being cited as controversial. Opposition to granting him the order, even from religious groups, fell within the realm of freedom of opinion, not religious fanaticism or sexism and intolerance.

The stark gap between the framing of each debate is hard to reconcile with perceived notions of fair and balanced public discourse in the “free” world. But it is more understandable once we recognize that what matters is whose ideals each man was undermining. The doctor was in the beast’s belly while fighting to cure one of its ills, while the literary critic chose to point at the ills of the beast next door, while playing down the ills of those hailing him for speaking out. All of this is neither to rank the achievements of either man nor to incriminate them in the slightest way. They lived the life they believed in. It is simply to remind ourselves that double standards of judgment are alive and well amongst us and that in the court of public opinion, all too often, the real culprits may be none other than…the members of the jury.

The author wishes to thank Diana Younes for her helpful insights and valuable feedback on the subject.

Beyond its importance in the American context, however, Canadian courts have cited it as precedent in a number of important Canadian legal decisions.

R. v. Morgentaler [1988] 1 S.C.R. 30

Both the Ontario Court of Appeal and then the Supreme Court cited Loving as an example of the right to privacy and the right to choose one’s spouse being the first in a series of decisions, all protected in American caselaw, ultimately leading to the decision to abort a pregnancy. Although the Ontario Court of Appeal decided that the right to abort a pregnancy was not fundamental enough to be protected under s.7 of the Charter, the Supreme Court reversed the Ontario court’s decision.

Particularly noteworthy is Justice Wilson’s comment that:

[t]he right to “liberty” contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life… A woman’s decision to terminate her pregnancy falls within this protected class of decisions, as it will have profound psychological, economic and social consequences for her.

This language affirms the Ontario court’s finding of Loving as an example of protection of personal autonomy under the law, but upholds that protection rather than finding it too broad.

Miron v. Trudel [1995] 2 S.C.R. 418

This 1995 case drew an analogy between common-law spousal relationships and legal marriages, reading common-law spouses into the definition of “spouse” in the Ontario Insurance Act. Interestingly, Loving was cited in Justice Gonthier’s dissent, which rejected the majority’s conflation of common law spousal relationships and legal marriages. Gonthier J.’s reliance on Loving is initially puzzling given that Loving is fundamentally about the expansion and protection of civil rights; it seems a more natural fit to be cited by the majority.

However, Gonthier J.’s reliance on Loving is informed by Chief Justice Earl Warren’s assertion in that case that “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The implication of this, Gonthier J.explained, was that marriage was “both a basic social institution and a fundamental right which states can legitimately legislate to foster.” Thus, Gonthier J. argued, using Loving as evidence, that the practice of marriage was so important that it should not be eroded by according common-law relationships the same protections.

L’Heureux-Dubé J. countered this reasoning in a concurring opinion, referring to a number of factors: that common-law relationships may change in their intent of avoiding marriage over time, that Canadian jurisprudence has over the years applied many of the obligations present in legal marriages to common-law relationships (for example, applying the constructive trust doctrine in Pettkus v. Becker [1980] 2 S.C.R. 834 to effectively create spousal support obligations to unmarried couples) and finally that “[f]amily means different things to different people, and the failure to adopt the traditional family form of marriage may stem from a multiplicity of reasons – all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law.”

Loving and Same-Sex Marriage In Canada

Of course, any discussion of Loving in a Canadian context cannot be complete without discussing same-sex marriage rights, as anti-miscegenation laws obviously analogize to the disallowance of same-sex marriage.

In EGALE Canada Inc. v. Canada (Attorney General) 2001 BCSC 1365, the British Columbia Supreme Court ruled that the legal status of marriage did not extend to same-sex couples. When the petitioners cited Loving as an analogous case, the court responded by arguing “[i]n context, Loving was concerned with rights. That is not the case in the petitioners’ circumstances. Their right to marry a person of opposite sex is not in question.”

This is an example of the standard legal jiu-jitsu employed in opposition to same-sex marriage whenever a comparison to miscegenation laws is raised: gay people have the same right to marry individuals of the opposite gender like everyone else, so they’re not being oppressed. This argument concerns itself with the letter of marriage rather than the spirit of it, which is personal fulfillment and emotional stability. Indeed, Chief Justice Warren wrote in Loving that marriage was “essential to the orderly pursuit of happiness.” Which is where this argument against same-sex marriage fails: a gay individual is not likely to derive much personal fulfillment or emotional stability from a person to which he or she cannot be sexually attracted.

In contrast to EGALE, Loving was successfully analogized by the Ontario Court of Appeal in Halpern v. Canada (Attorney General) [2003] O.J. No. 2268, where the court directly cited Loving in applying the test for violations of s. 15(1) of the Charter created in Law v. Canada [1999] 1 S.C.R. 497. In Halpern, the court dismissed the argument that marriage was traditionally defined as being between a man and a woman by saying “whether a formal distinction is part of the definition itself or derives from some other source does not change the fact that a distinction has been made.” The court then drew on Loving in positing that anti-miscegenation laws were “traditional” despite being delineated along racial grounds. This argument formed part of the basis for the pro-same-sex-marriage decision in Halpern, where prohibition of same-sex marriage was found to violate s. 15(1).

Interestingly, in using Loving as precedent for the defence of same-sex marriage rights, Canadian courts have gone much further than American courts. As an example, in Hernandez v. Robles 2006 NY Slip Op 05239 [7 NY3d 338], the New York State Court of Appeal sought to distinguish the racist miscegenation laws overturned in Loving from the prevention of same-sex couples from marrying by pointing out that racism had been recognized as a societal evil for centuries, whereas homophobia had only been recognized as a societal evil relatively recently. The court in Hernandez accordingly found that the Fourteenth Amendment had not borne homophobia in mind when it was constructed but did concern itself with racism. Cases like Hernandez underscore the tendency among some American jurists (especially those belonging to the “originalist” school) to limit the scope of 14th Amendment to the perceived (race-related) intent of its framers.

A concurring opinion in the same decision stated “[f]ar from recognizing a right to marry extending beyond the one woman and one man union, it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.” It is worth noting that although Chief Justice Warren did indeed note that marriage is “fundamental to our very existence and survival”, he did so only after stating that the freedom to marry was “one of the vital personal rights essential to the orderly pursuit of happiness,” which, to this writer, implies a privileging of happiness over justice as regards the purposes of marriage.

Conclusion

Loving v. Virginia remains a powerful precedent in Canadian law, both for privacy rights and for promotion of the importance of access to marriage rights. This is entirely appropriate as Mildred Loving explained in 2007, on the fortieth anniversary of Loving‘s decision:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all.

While the picture remains bleak in an American context, at least in Canada, Mildred Loving is survived by her invaluable contribution to equal access to marriage across not only race, but also gender-based lines.

TheCourt.ca: What do you remember most about January 28, 1988?
Henry Morgentaler: Well, I remember attending the Supreme Court in Ottawa, and my astonishment that the Supreme Court actually invalidated the abortion law. I was ecstatic about the ruling.

TheCourt.ca: What surprised you about it?
HM: I was surprised that it was so final and definitive, and I accept it as a vindication for my struggle and still view it now as a major achievement. In fact, the Supreme Court decision was everything I longed for and aspired to. It opened a way for me and for other physicians to establish clinics across the country and to provide the services that women needed in an atmosphere of compassion and with competence.

TheCourt.ca: As your case made its way through the courts, your name became synonymous with the abortion debate. What was that experience like?
HM: I must say I enjoyed the experience of representing the pro-choice side and I was happy I was able to defend it well. I am very proud of that legacy. I feel that I defended a great cause, and I did it with conviction, dedication, and respect for myself and my opponents.

TheCourt.ca: What was the scariest part?
HM: Well, there is no doubt that the stress involved in fighting for abortion rights and the actual physical attacks and threats took their toll. I personally felt that I was acting on my ideals, I was very gratified about the results I was able to achieve and it largely compensated for the stress and intimidation I had to endure. Unfortunately, my family was subjected to threats, and danger which affected me greatly.

TheCourt.ca: Given the chance, would you put yourself in that position again?
HM: Yes! This struggle for abortion rights gave meaning to my life, and it corresponded to the ideals that I inherited from my parents, dedication to human rights and an ability and willingness to make this world a better place to live.

TheCourt.ca: Twenty years later, how secure is your victory?
HM: The victory is pretty secure, in my mind, because in twenty years we have been able to help many women. Canadians have had a good experience with the ability of women in Canada to access good abortion services, and the people are aware of the enormous benefits for society that this has engendered; women no longer die as a result of “botched illegal abortions,” the mortality of women in childbirth has improved, and the recent polls show that 80% of the population in Canada are pro-choice.

TheCourt.ca: Since R. v. Morgentaler, successive Canadian governments have been reluctant to place new criminal restrictions on abortion. By contrast, Roe v. Wade doesn’t seem to have had a similar impact on U.S. state governments. How do you explain this difference?
HM: It seems that Canadian attitudes towards abortion are more enlightened than those prevalent in the United States, we don’t seem to have as many fundamentalists in Canada as there are in the United States, and the Canadian experience with abortion services over the last twenty years have convinced Canadians of the importance of providing this service

TheCourt.ca: You’re currently involved in a New Brunswick case that concerns the extent to which provincial governments actually have a duty to provide access to abortion. Is this the new frontier in abortion litigation in Canada?
HM: The New Brunswick case is unique unto itself. The major parties in New Brunswick, both the Conservatives and the Liberals, are anti-choice, which makes the situation difficult. I wouldn’t call it a new frontier; I would call it “old school” stubbornness, and the influence of religion on the government.

TheCourt.ca: Section 15 of the Charter (the equality guarantee) wasn’t a factor in the Supreme Court’s 1988 decision, since your arrest came in 1984, one year before section 15 came into force. Now that section 15 is available to courts considering abortion litigation, what impact do you think it will have?
HM: I think it will have a positive impact, but I think it won’t be necessary to invoke section 15 under the Charter because Abortion rights in Canada now seem to be well established, and no serious challenge to it could succeed according to my estimate.

I’ll never forget January 28, 1988, the day the Supreme Court struck down the abortion law. It was freezing cold. A group of pro-choice activists were standing in front of the Morgentaler clinic along with a mob of media waiting to hear the news from our comrades in Ottawa. They were supposed to call the clinic as soon as the decision came down and the clinic staff would let us know what happened. We didn’t have cell phones in those days. A reporter called me aside and said she had just heard on her radio that the Supreme Court had struck down the law on the grounds that it interfered with women’s right to security of the person. I didn’t believe her. We thought the justices might very well strike down the law, but we figured it would be on the technical grounds of lack of equal access. A decision based on the Charter guarantee of security of the person was too much to hope for. After all, the major argument of the pro-choice movement was that a woman had the right to control her own body.

Indeed, the majority decision written by Chief Justice Brian Dickson stated:

[S]tate interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person… Section 251 [the old abortion law] clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.

It was a profound and incredibly long-lasting victory that for us was of equal significance to the winning of the right to vote a couple of generations before. In essence, the highest court of the land said that the abortion law violated a woman’s right to control her own body free from state interference.

Voting with the majority, Justice Bertha Wilson went much further. It was really the first time we saw a feminist interpretation of law at the highest level.

[T]he present legislative scheme for the obtaining of an abortion clearly subjects pregnant women to considerable emotional stress as well as to unnecessary physical risk. I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well.

Wilson added that it was likely impossible for a man even to understand the dilemma of a pregnant woman contemplating an abortion, “not just because it is outside the realm of his personal experience – but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche, which are at the heart of the dilemma.”

Morgentaler was acquitted by a jury in Toronto in 1984, one year before the Equality Rights provision of the Charter was proclaimed, so his lawyer Morris Manning had to rely on other provisions of the Charter for his arguments. Despite the battle for equality rights waged by the women’s movement in English Canada, there is no doubt that the Morgentaler decision was the most important women’s equality decision ever decided by the Supreme Court.

After eight years of battles in the courts, in the streets, in the media and throughout society, we had won our argument at the highest court in the land and in the court of public opinion. The next day riding the street car, everyone was talking about the victory. Dr. Morgentaler had become a hero to most Canadians, the little guy fighting against the system. He had gone to jail for his beliefs in the 1970’s in Quebec, but still was willing to risk incarceration again in Ontario. He stood up to death threats, anti-semitism, ridicule and every other way that opponents try to silence fighters for justice, but he never wavered.

But without the work of the women’s movement, it is doubtful the victory would have been as deep-seated. First, the abortion battle is probably the best example of the relationship between social struggles and legal decisions. For almost ten years, the abortion debate had been on the front burner in Ontario and then across the country. Debates, marches, direct action, clinics opening and in some cases being shut down, clashes with the anti’s, resolutions in the unions, on campuses and in community organizations, everyone had to take a stand, including the Justices.

Chief Justice Dickson told me many years later that the Morgentaler decision was his proudest moment on the Supreme Court.

If we compare the Morgentaler decision to Roe v. Wade in the U.S., we can see a number of key differences. Of course Roe v. Wade only legalized abortion in the first trimester, but after it was passed, the women’s movement figured they had won an enormous victory and turned to other issues. In the meantime, the anti-choice movement began organizing and they form the basis of the Christian Right that has helped elect reactionary presidents ever since. The women’s movement in the U.S. had to remobilize on the abortion issue and it has been the centre of their concerns ever since.

In Canada, the battle continued after the Supreme Court decision. In 1989, two women, Barbara Dodd in Ontario and Chantal Daigle in Quebec, took the 1988 decision even further. In both cases, their boyfriends tried to get an injunction to stop the woman from having an abortion. In Tremblay v. Daigle, the Supreme Court ruled that the foetus has no legal status in Canadian law, under either the common law or Quebec Civil law.

In the same period, Brian Mulroney’s government tried to recriminalize abortion with a law they thought would stand a Charter test. It was defeated by a single vote in the Senate. No government since has dared to make another attempt.