Opening Its Eyes: Conscience and the Supreme Court in Hutterian Brethren of Wilson Colony is pleased to present this piece from Professor Richard Haigh of Osgoode Hall Law School, commenting on the recent Supreme Court of Canada case, Alberta v Hutterian Brethren of Wilson Colony. For more of our commentary on this case, see here.

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 Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567 [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:

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 (para 90).

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 R v Morgentaler[1988] 1 SCR 30 [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 SCR 295 [Big M Drug Mart], 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 (para 127, quoting Big M Drug Mart, 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:

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 (para 180).

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 of Canada 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.

Richard Haigh

Richard Haigh is a full-time professor at Osgoode Hall Law School and a Co-director of York’s Centre for Public Policy and Law. He has a doctorate from the University of Toronto in the area of freedom of conscience and religion and an LLM from Cambridge University. His most recent research analyzes quantitative and qualitative effects in adjudication at the Supreme Court of Canada, including material related to interveners and to judicial interjections at the Supreme Court of Canada.

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