Isolated indoors during a bleak, pandemic winter, it may be hard to imagine the beauty of a spring flowerbed. But conjure up, if you will, a lush garden in full bloom. One conspicuous poppy grows above the rest, vibrant and colourful. Do you admire its uniqueness? Or reach for the pruning shears to snip it down to size?

If you happen to be a judge in the Supreme Court of Newfoundland and Labrador, you will no doubt grab the scissors. After all, conformity — not diversity or inclusion — is the real goal of any good social gardener. A recent decision from Justice Vikas Khaladkar proves my point.

First, let me set the scene. Desirée A. Dichmont, like all tall poppies, was unique. Born in 1926 in South Africa, she was an adventurer if ever there was one. A pilot in the Second World War, her Christian commitment to humanity took her around the globe, from Israel to Canada, from a Zambian leper colony to the slums of Cape Town. With a college education in classics, English and theology, she worked in orphanages and schools. In 1966, she moved to Newfoundland where she became a high school teacher in Carbonear. She met Her Majesty Queen Elizabeth II on several occasions and received the Queen’s Golden and Diamond Jubilee Medals for her volunteerism and service. In 1997, she became a marriage commissioner, performing over 50 marriages.

Within a few years, however, this community-minded soul was to face a test of conscience that made her the subject of extended litigation that continued after her death at age 90. The issue arose because of the redefinition of marriage in Canada.   

On Dec. 9, 2004, the Supreme Court of Canada released its opinion on the government’s proposal to redefine marriage as between “any two persons” (Reference Re Same-Sex Marriage [2004] 3 S.C.R. 698). Technically the federal law was unchanged, but less than two weeks later, the Supreme Court of Newfoundland and Labrador ruled same-sex marriage was legal (Pottle et al. v. Attorney General of Canada et al. [2004] N.J. No. 470). Keen to be “on the right side of history,” the Registrar of the Vital Statistics Division then sent Dichmont a letter two days before Christmas, demanding that she promptly state whether she would participate in same-sex marriage ceremonies.

In her reply, Dichmont observed that “minorities must also be treated with dignity and care.” Her moral and religious beliefs included a genuine concern for the well-being of same-sex couples, and she had no intention of discriminating against them or standing in their way to be civilly married. However, she was concerned by the lack of accommodation for those who could not in good conscience officiate non-traditional marriages. It bothered her that “any civil appointee is expected, or perhaps even required, to be devoid of scruples.”

Dichmont was the only marriage commissioner in the entire province of Newfoundland and Labrador who requested accommodation. Yet only two alternatives were offered by the registrar: do as you’re told or resign. Dichmont duly resigned, but on June 7, 2005, she filed a human rights complaint. Seven years later, on Sept. 27, 2012, the Human Rights Commission dismissed the complaint for insufficient evidence.

Dichmont then sought a judicial review on the refusal to hear her case. On Feb. 9, 2015, Justice Alphonsus Faour decided the commission’s decision not to refer the case to a Board of Inquiry was unreasonable (Dichmont v. Newfoundland and Labrador (Minister of Government Services and Lands) [2015] N.J. No. 38).

The inquiry heard her case, but before it released its decision ruling against her claim for accommodation, Dichmont passed away. Her executors felt it necessary to pursue the case because, as a matter of deepest principle, it meant so much to “tall poppy” Dichmont. 

At long last, on Jan. 21, 2021, the Supreme Court of Newfoundland and Labrador ruled in favour of the Human Rights Commission, concluding that if Dichmont could not perform her duties without discriminating, “then she cannot continue to be a marriage commissioner” (Dichmont Estate v. Newfoundland and Labrador (Minister of Government Services and Lands) [2021] N.J. No. 24, para. 42). Given the significance of this case, we can only hope that the unfortunate decision of Justice Khaladkar will be appealed, especially considering the following:

Costs

Justice Khaladkar found that the Dichmont Estate had the right to continue with her complaint. He also held that his ruling in the case would “provide some guidance to both government and potential marriage commissioners as to what might, or might not be expected of them in carrying out their duties” (para. 17).

Given this explicit affirmation of the importance of the case, it is baffling that the justice would then proceed to award costs against the estate in favour of the government. This was not a typical holding of costs but costs at the second-highest rate. In short, it was a punitive order against Dichmont for having the temerity to bring a worthless case: a “how dare you?” kind of decision.

How can “[t]he resolution of [a] dispute … in the public interest” (para. 19) lead to a such a damning cost award? It simply makes not one iota of sense. On this matter alone the case should be appealed. Otherwise, this decision will chill any rights claimant from ever seeking redress for the loss of religious freedom.

State neutrality

Justice Khaladkar rejected Dichmont’s request for accommodation, insisting that as an agent of the state, she should “appear neutral” (para. 36). He conceded, “[t]he individual is, of course, free to think whatever s/he wishes,” but argued “that does not translate to the freedom to act in accordance with the individual’s convictions” (para. 36). Hence, Dichmont should “not have the luxury of refusing [a same-sex] couple” (para. 37, emphasis added). According to Khaladkar, “avoidance of a duty that the law requires you to perform is tantamount to promoting one’s own belief” (para. 39) — a position that turns the entire law of accommodation on its head.

Dichmont had proposed that the government establish a single point entry system, similar to the way it handled requests for marriages in French: by internal assignment of those who could officiate. Both the inquiry and Justice Khaladkar claimed this would violate state neutrality. It would burden the province “to hide” discrimination (para. 58) and subject minorities to a “subtle and constant reminder of rejection” (para. 59) when forced to reveal their differences. It could also place the province in the “unenviable position” of arranging for someone outside a community to solemnize a marriage if the sole commissioner in a remote region were unable to perform the wedding (para. 61). Since this unlikely scenario could arise for other reasons, why would it be untenable in the rare case of a conscientious commissioner?

What Khaladkar failed to acknowledge is that the province would still be providing a service to all. No one would be rejected and all would have the opportunity to be married, even if the government accommodated a commissioner with conscientious objections. By contrast, refusing to accommodate Dichmont meant she was the one being discriminated against.

Finally, Justice Khaladkar suggested Dichmont should have applied to be a celebrant of marriages in her church, where “[d]iscrimination on the basis of sexual preference is condoned by society” and “freedom to practice one’s religion has the most traction” (para. 44). This may seem like an appropriate resolution, but it is unworkable — in part because most religious traditions have specific requirements for clergy such as seminary education or ordination, which in some denominations is only for qualified men.

Moreover, both clergy and marriage commissioners act on behalf of the state when they perform marriages. Either they must not discriminate (on Justice Khaladkar’s reasoning), or they must both be accommodated. Failure to protect one is to the detriment of the other; accommodation for either role hinges on conscience. The Charter right to conscience is meant to protect the individual regardless of his or her job position.

Ultimately, our society must wrestle with how we, from all walks of life, with all kinds of religious understandings, can live together on the same garden plot in peace. Is it not reasonable that we seek to accommodate, as much as possible, the entire population? Conscientious objectors are tall poppies: exceedingly rare and unique. If we cannot allow them to bloom above the crowd, then we are not all that diverse, are we?

This piece was previously published at The Lawyers Daily  https://www.thelawyersdaily.ca/articles/24749/-religious-conscience-tall-poppy-syndrome-barry-w-bussey-

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