Barry W. Bussey, counsel for CCCC as intervener before the Supreme Court of Canada in the Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses (Vaughn Lee – Chairman and Elders James Scott Lang and Joe Gurney) and Highwood Congregation of Jehovah’s Witnesses v. Randy Wall

Note:  The written legal brief “Factum” filed by CCCC in the court can be found here. For a video of the oral arguments at the hearing see:  The Supreme Court of Canada’s webcast. The following oral argument by Barry W. Bussey is found at minute 58 to 1:03.

Barry W. Bussey and Philip A.S. Milley represented CCCC at Supreme Court of Canada

Oral Argument

Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses and Highwood Congregation of Jehovah’s Witnesses v. Randy Wall

Barry W. Bussey

November 2, 2017

May It Please the Court:

There are three points I would like to make today:

1. Religious membership is a private matter that does not engage a public interest;
2. The law is not equipped to review private religious matters;
3. This decision will impact my client’s membership.

Barry W. Bussey speaking on behalf of CCCC at the Supreme Court of Canada

1. Religious membership is a private matter that does not engage a public interest

My client submits that the law is not required, nor should it be burdened with the complexities of internal religious disputes.  Justice does not require law to extend to private intricate concern of theological controversy.  The law does not extend to every nook and cranny of private religious enterprise.

Having chosen to be a member of a voluntary religious community the individual chose to live in accordance with the norms of that community and to live with the realization that that community is the ultimate arbiter of their continued fitness for membership.  The law ought to respect this individual’s free choice even though, upon the dissolution of the relationship, there may be hard feelings and a loss of camaraderie.

Western Civilization has learned through history’s anvil that religious disputations are best left to the adherents.  This very week we have commemorated 500 years since the nailing of Luther’s 95 Theses on Wittenberg’s church door.  We are all aware of the tumultuous history that followed as the various heads of state took sides on what was, in essence, a theological dispute.  We have learned from our history that it is the best course of action for the state to leave internal religious disputes alone.

Individually we may sympathize and have compassion with how a religious member’s membership has been treated by his religious community, but our law has no place for such sympathy.  Not that the law is harsh or cruel but that the law is just in its realization that a person is free to join or not to join; that a religious community and its norms of membership, rooted as they are in theology and religious history, is to be respected.

2. The Law is not equipped to adequately review private religious matters.

The law has wisely recognized that it is not equipped to engage in theological disputes.   Secular law has no privity to the theological and socially contextual complexity of the religious community under review.  Our law has no understanding of such matters.  Nor, I would suggest, should it.

Consider, what might be the result of the law taking on religious disputes.  A religious community may argue about the nature of God – whether there is a Trinity.  Should the law hear a case about the lack of procedural fairness from those who lost the debate about the Trinity?

Debates about metaphysical truth within the context of religion are common.  In fact, it might be appropriate to say differences of opinion in religious matters are the norm.  Over the centuries religious communities in the West have shown themselves quite adept at handling religious disputes.  Unbridgeable differences have resulted in disgruntled members leaving and forming other religious communities. That, I suggest is the mark of a free society – free to enter; free to exit.

3. The Effect on our Members

Should religious communities have to be concerned about providing procedural fairness, as secularly understood, it will be an imposition on the religious beliefs and practices.  There are currently some 33000 religious charities in Canada.  Much of the work carried out by charities is done by volunteers.  This works because these people are religiously motivated.

In our experience, with our 3400 members we find that government regulations such as filing the annual CRA return the T3010 is a serious challenge for many.  They are religiously motivated to carry out the good work of the charity but are not motivated to carry out government requirements.

Imposing secular norms of procedural fairness on religious decisions will only take the volunteers from their good works.  First, they may not understand the legal nuance and properly carry out the secular norms.  Second, they will be hamstrung by disgruntled members who may have an “axe” to grind in a religious dispute. Third, they have limited resources to deal with court actions – their community, indeed our country, needs those resources and energy spent in ministry, not fighting over procedure.

Barry W. Bussey (CCCC counsel); Michael A. Feder (counsel for Mr. Wall)

David Gnam, (counsel for Highwood Congregation of Jehovah’s Witnesses); Barry W. Bussey (counsel for CCCC)

The post CCCC Makes Oral Argument At Wall Case appeared first on CCCC Blogs.

The legal test for an intervener is the likelihood of the proposed entity being able to make a useful contribution to the resolution of the matter without causing injustice to the immediate parties.  To determine that the courts require the proposed intervener meet at least one of the following:

• that it has a real substantial and identifiable interest in the subject matter of the proceeding;
• that it has an important perspective distinct from the immediate parties;
• that it is a well-recognized group with a special expertise and a broadly identifiable membership base.

The court gets to choose, in its sole discretion, whether a proposed party will in fact be useful.  Justice Hoy was of the view that CCCC had met the test but at the end of the day she was of the view that its submissions would not be of any assistance as its arguments would be duplicative of the arguments put forward by the Canadian Constitution Foundation (CCF).  The CCF proposes to argue “that the Divisional Court gave insufficient weight to the historical importance of religion in Canada balancing the competing Charter rights at play.”

During oral argument, I, as CCCC’s lawyer, pointed out to the Court that CCCC wanted to emphasize the importance of institutional religious freedom under s.2a of the Charter.  I also stated that there was an important contribution CCCC could make about the ability of such institutions in the ongoing debate about the “private” and “public” sphere.  When asked about how that is different from TWU’s position I noted that as an organization of some 3300 Christian charities across Canada we are well placed to share with the Court the implications its decision will have not only on universities but the entire institutional Christian community, as they too have codes of conduct based on their religious beliefs.

The position of institutional religious freedom runs to the core of what CCCC’s is all about.  We have ministries that range from development organizations drilling wells in underdeveloped countries to running TV programming.  It is a wide swath of endeavours that its members are a part of.  The outcome of this case against TWU is not, in our view, going to be limited to universities and educational institutions.  Instead the ramifications will be widespread.

To date, the courts in B.C. and Nova Scotia have thought that CCCC’s contribution to their respective TWU cases has been of value as we have been given the opportunity to submit our position and concerns.  Ontario courts have not found CCCC’s position to be of any assistance.  It is their call to make.

During oral argument, at the Ontario Court of Appeal, I also shared our experience in the BC and Nova Scotia courts.  When those courts granted intervener status they maintained the discretion to grant oral argument after the factums (legal briefs) were filed.  This provided the courts flexibility to determine whether it was necessary to hear oral argument from the interveners.  It also provided the interveners the opportunity to meet and discuss among themselves their various positions to ensure that they eliminate as much overlap as possible when preparing their factums.  Indeed, Justice Hoy encouraged the interveners in this case to consult with each other to avoid any duplication in their argument.  She also retained the discretion of granting oral argument to panel of judges that will hear the case.  “Once the panel has reviewed all factums filed and heard oral submissions from TWU and the LSUC, it will be in a position to determine to what extent oral submissions from the interveners would be of assistance to it.”  That is a positive move forward and it will hopefully assist in future cases of this nature in Ontario.

Though CCCC will not be part of the hearing at the Ontario Court of Appeal, perhaps we nevertheless had a positive role to play, however indirectly, by making such submissions on procedure.  That in the end, the process is better because CCCC did in fact participate to such a limited degree.

In the meantime, we will continue with our arguments in Nova Scotia in the New Year where we have been granted 20 minutes oral argument and also granted the right to file a 20 page brief outlining matters that, in our view, will be helpful to the court about the importance of this case to institutional religious freedom.

The post CCCC Denied Intervener Status at Ontario Court of Appeal appeared first on CCCC Blogs.

TWU had a similar fight fifteen years ago when it went to the Supreme Court of Canada to get its education degree accredited.  However, that was only one litigation track – now it faces three!  The Supreme Court ordered the BC College of Teachers to accredit TWU’s education degree.  That was in 2001.  A long time ago – for some.  So long, in fact, that they say that the 2001 SCC case has no bearing on the current struggle.  Times change.  The argument is — we are more progressive and the Court would not decide as it did in 2001.  That is to be seen.

At stake is whether religious autonomy remains part of the Canadian promise of diversity and multiculturalism, as noted in section 27 of the Canadian Charter of Rights.  Or, can the state come in to such communities and expunge from their beliefs and practises elements it disagrees with?  Or, make life so difficult for such communities that they either close shop or comply.  TWU’s “Community Covenant” requires students to abstain from, “sexual intimacy that violates the sacredness of marriage between a man and a woman.”[1]  This is similar to the 2001 iteration and is perfectly legal.  However, the law societies do not like it.

When marriage was redefined “for civil purposes” in 2005 a number of protections were given to religious communities that, when looked at as a whole, was meant to maintain diversity in Canada.  First, the Civil Marriage Act stated, “no person or organization shall be deprived of any benefit, or be subject to any obligation” under federal law for the exercise or expression of their religious freedom on their beliefs of marriage as “the union of a man and woman….”[2] Second, the Income Tax Act was amended to explicitly state that a registered charity that is involved in the advancement of religion “shall not have its registration revoked or be subject to any other penalty”[3] for exercising its beliefs on marriage.  Third, the Supreme Court held that compelling religious officials to perform marriage contrary to their religious beliefs would violate the Charter.[4]  Diversity in Canada was thus going to be real.  Institutions that held to traditional marriage were to be treated as equals.

Diversity will be diminished should the law societies be successful.  Not only will the only Christian law school be denied to Canada but it is not beyond the realm of possibility for such a result to permit law societies to cull from its ranks those lawyers in the profession who maintain the same views as TWU on marriage.  That sounds radical.  It is.  However, in 2001, when dealing with TWU’s education degree the Supreme Court of Canada declared such logic was plausible for the College of Teachers to deny accreditation to individual teachers with similar views as TWU when it stated:

“Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.  The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected. “[5]

“The very essence of our Canadian society,” said the Supreme Court in another case, “is determined by the diversity which is permitted to flourish.”[6]

The outcome of TWU will either enrich the fertile soil of the Canadian legal and democratic landscape, or impoverish it. It will either strengthen the Canadian ethos of creativity and unity in diversity, or impose a mindset of uniformity and compulsion. It will either stunt growth, or allow the abundant flora of Canadian society to flourish.

We need to let diversity flourish.

—-

[1] See paragraph 3 of “Community In Covenant” https://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

[2] Civil Marriage Act, S.C. 2005, c. 33, s. 3.1.

[3] Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), s.149.1 (6.21).

[4] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, at para. 58.

[5] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 33.

[6] Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, para. 76.

The post Trinity Western University and the Legal War of Attrition: Isn’t It Time To Let Diversity Flourish? appeared first on CCCC Blogs.

The Divisional Court held that though the religious freedom of TWU was infringed, LSUC’s decision was justified because it was reasonable to take into consideration the discriminatory nature of TWU’s admissions policy when deciding to accredit the proposed school.  However, Court did say that LSUC “will be duty bound to properly consider” the individual accreditation requests of TWU graduates to ensure their religious rights are minimally impaired.  (Para. 128)

While this may appear to be a major step back for Trinity’s law school, it is really one step toward the ultimate decision to be handed down, eventually, by the Supreme Court of Canada.  TWU has already announced that it will be appealing the decision[2] at the Ontario Court of Appeal.  Among the interesting issues to watch on the appeal are these:

The Democratic Imperative

The Divisional Court’s decision made no mention of the recent statements from the Supreme Court of Canada about the “democratic imperative.”  That imperative is “the pursuit of an ideal: a free and democratic society”.[3]  The state is required to “encourage everyone to participate freely in public life regardless of their beliefs.”[4]  The state has no business to create “a preferential public space that favours certain religious groups and is hostile to others.”[5]

The question for the Court of Appeal will be, “Is the Divisional Court’s decision one that is in keeping with the democratic imperative?”

Many commentators suggest that when religious institutions are involved in the “public sphere” they must remove their religious scruples and adopt the public norms.  Their argument suggests that in the case of a religious university wanting a law school, it must be willing to put aside its religious practise to get public accreditation.

The Divisional Court appears to have adopted the view that the state can have a preferential view on religious beliefs and, based on that view, refuse to accredit religious institutions.  The Court said TWU cannot compel the Law Society to accredit its law school “and thus lend [the Law Society’s] tacit approval to the institutional discrimination….”  (Para. 115) Because, says the court, that would mean that “TWU could compel the [LSUC], directly or indirectly, to adopt the world view that TWU espouses.”  (Para. 115)  That is a telling statement of the Court and is out of place with the recent comments of the Supreme Court. The Supreme Court says the state cannot take sides on religious matters – it must be neutral.  It cannot deny a service to a citizen because it disagrees with that citizen’s worldview.  Herein lays bare what is at issue in this case.  It is a matter of competing “worldviews”.  The Divisional Court appears to be saying that if the Law Society does not like TWU’s worldview on marriage, then it can deny accreditation.  That is simply unjust.  No state actor should hold back on its public duty on the basis of differences on issues of “worldviews.”   The Supreme Court’s Saguenay[6] decision stated unequivocally that the state must be neutral on religious beliefs.  The SCC said,

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (see R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 31 and 50‑51). On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27  of the Canadian Charter . Section 27  requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter , but also with a view to promoting and enhancing diversity….[7]

Note the following:  TWU is the only religious law school in the country; its religious practise is to support marriage as  betweenone man and one woman.  That religious belief and practise is not against public policy but protected by the Charter.  Indeed, in 2005, the Marriage Act[8] was passed with this prescient clause, “WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage.”

It will be interesting to see how the Court of Appeal deals with the “democratic imperative.”

The Right of Religious Institutions To Self-Determination

The Divisional Court took issue with the term “discrimination”.  It noted that the belief system of TWU does discriminate and rejected TWU’s argument that it was not discriminating.  There is a difference of opinion about what is and is not acceptable discrimination.  This is something the Court of Appeal will have to address.  In essence, it is a right of self-determination of its internal rules.

The fact remains the discrimination practised by TWU is a “lawful” discrimination.  The university is not for everyone as the Supreme Court of Canada noted in 2001 and stated,

That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence.  It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply.  To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15  would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality. [9]

The Divisional Court takes umbrage at TWU’s position “To assert that that result [to attend TWU means to disavow one’s beliefs and, for LGBTQ, their identity] is not, at its core, discriminatory is to turn a blind eye to the true impact and effect of the Community Covenant.” (Para. 106)  Such umbrage is not only directed at TWU but at the very reasoning of the Supreme Court of Canada’s decision of 2001.  Indeed, the Divisional Court makes a frontal attack at that 2001 decision when it states that:

First, discrimination is still discrimination, regardless of whether it is unlawful… (Para. 108)

Second, the fact that the Community Covenant may promote an important right, that is, the observance of a particular religious belief, does not mean, by virtue of that itself, that the effect of the Community Covenant is not discriminatory (par. 109)

Third, while TWU may not be subject to the Ontario Human Rights Code, the [LSUC] is. (Para.110)

Further, the Divisional Court was not impressed by TWU’s position that it treats everyone with fairness, courtesy and open-mindedness. Such “does not change the fact that notwithstanding TWU’s stated benevolent approach…in order for persons, who do not hold the beliefs that TWU espouses, to attend TWU, they must openly, and contractually, renounce those beliefs or, at the very least, agree not to practise them.  The only other option … is to engage in an active deception…with dire consequences if their deception is discovered.”  (Para 112)

Unfortunately, the Divisional Court’s discomfort with the TWU Community Covenant is a discomfort with the entire religious institutional reality.  From one end of this country to the other we have religious institutions that have established rules of admission based upon religious beliefs and practises.  Just as the Court noted that “sexual conduct is an integral part of a person’s very identity” so too are the religious beliefs and actions of a person.  The challenge made by the Divisional Court on the internal administration of TWU is, in reality, an attack on the very idea of religious community and their institutions.

The Court of Appeal will have to decide whether a religious institution can continue to have the right of making its own internal rules that govern the moral and ethical ethos of its operations.

The Religious Freedom To Have A University

The Divisional Court expressed reservations about whether evangelical Christians should have a right to claim protection of religious freedom for religious beliefs and practises that are not mandatory.  Here is what the Court said:

“There is no evidence before us that the ability of an evangelical Christian to gain a legal education requires that they study at a law school that only permits the presence of evangelical Christian beliefs and only permits the attendance of those persons who commit to those beliefs.  Indeed, the contrary would appear to be obvious from the fact that evangelical Christians have been attending secular law schools, and successfully becoming lawyers, for decades, if not longer.”  (Para. 78)

That is a very troubling rationale.   First, the Divisional Court appears to have misunderstood TWU’s position.  It is not that evangelical Christians are required to study law at a Christian law school.  Rather, it is that they choose to do so.  Second, the Divisional Court appears to be directly at odds with the Amselem decision[10] of the Supreme Court of Canada where the Court stated,

Consequently, both obligatory as well as voluntary expressions of faith should be protected under the Quebec (and the Canadian) Charter.  It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.  An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.[11]

“Plagued with difficulties” is an apt description of this reasoning by the Divisional Court.  To limit religious freedom by saying in essence “that since law schools are not required by the evangelical Christian community it is therefore not something to be protected under the Charter,” is to totally ignore the Charter right of religious freedom.

In the end, the Divisional Court did not allow this rationale to deny protection under s. 2(a) of the Charter but it nevertheless reveals an analysis that is, to say the least, troubling.  We will watch with interest how the Court of Appeal deals with the religious freedom claim of a community to operate a law school.

Conclusion

The Divisional Court took a very radical approach, quite different from the decision of Justice Jamie S. Campbell[12] (whom the Ontario Division Court referred to as “a judge in Nova Scotia”).  The Ontario decision has called into question the right of a religious institution to determine its own internal operations in accordance with its religious beliefs and practises.  This is a cause of concern for the Canadian Council of Christian Charities.  As an umbrella group of 3,300 charities across the country, the right of our community to operate within a religious ethos is foundational and must be preserved.

Religious freedom of religious institutions is at stake in this case.  When one considers the fact that TWU is now fighting on multiple legal fronts on virtually the same issues it fought over about 15 years ago, we cannot but conclude that this is a fight for justice that is bigger than the sum of the parts.  It remains a challenge to establish the right for all religious institutions to determine for themselves how they ought to operate while being faithful to their religious ideals.

The Divisional Court’s decision may appear to be a step backward, but in the grand scheme of things, it is a march forward to the ultimate tribunal at the Supreme Court of Canada, which will ultimately determine whether its 2001 decision, that respected the rights of religious institutions, continues to be good law.

—–

[1] Trinity Western University v. The Law Society of Upper Canada  2010 ONSC 4250, dated 2015-07-02.

[2] http://www.twu.ca/news/2015/035-lsuc-decision.html

[3] Mouvement laïque québécois v. Saguenay, at para. 75.

[4] Mouvement laïque québécois v. Saguenay, at para. 75.

[5] Mouvement laïque québécois v. Saguenay, at para. 75.

[6] Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16

[7] Mouvement laïque québécois v. Saguenay, at para. 74.

[8] Civil Marriage Act, S.C. 2005, c. 33, Assented to 2005-07-20.  Online:  http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html

[9] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31 at paragraph 25:

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions.   That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15  jurisprudence.  It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter  does not apply.  To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15  would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.

[10] Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47

[11] Syndicat Northcrest v. Amselem, at para. 47.

[12] Trinity Western University v. Nova Scotia Barristers’ Society,  2015 NSSC 25

http://decisions.courts.ns.ca/nsc/nssc/en/100659/1/document.do

The post The Onward March of TWU: Next Step The Court of Appeal appeared first on CCCC Blogs.

At first glance the 20-6 decision appears to be lopsided; however, the sentiments expressed even by a number who voted against the motion were not at all flattering to TWU’s Community Covenant Agreement” [i] that requires all students to “voluntarily abstain from the following actions…[including] sexual intimacy that violates the sacredness of marriage between a man and a woman.”[ii]  A number of the benchers described it as “repugnant,” and “abhorrent.” Bencher Joe Arvay opposed what he said was a “metaphorical” sign on the law school which says, “‘No LGBT students, faculty or staff are welcome.’”[iii]  However, another bencher, Lynal Doerksen rightly pointed out that to refuse accreditation “on the basis their exercise of their belief in a traditional marriage is not in the public interest is, in my view, a very shaky legal foundation which will not stand up in court.”[iv]

What was convincing to the benchers was the fact that the Supreme Court of Canada’s (SCC) decision in 2001 involving TWU’s application to the British Columbia College of Teachers (BCCT) for accreditation of its education program still remained the law.

In the 2001 case the BCCT refuse to accredit TWU’s teacher training program [v] because TWU required students to sign on to a “Community Standards” that forbade “practices that are biblically condemned,” including (but not limited to) sexual intimacy outside the relationship of one man and one woman committed in marriage.

The SCC decided (8-1) that the BCCT could not simply consider equality rights without regard to religious freedom. “British Columbia’s human rights legislation accommodates religious freedoms,” said the SCC, “by allowing religious institutions to discriminate in their admissions policies on the basis of religion.” [vi]  The SCC concluded that BCCT’s denying TWU accreditation because of a fear that the Community Standards requirement would lead to TWU graduates discriminating against the LGBT community was unfounded. There was no evidence to support such a view. Further, the SCC rightly opined that “it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”[vii]

Despite the recent opposition by virtually all of the law faculties and law deans across Canada, the BC Law Society felt it was compelled to abide by the law.  That is as it should be.  To have gone against TWU would have been to ignore the 2001 ruling of the SCC.

I am reminded of a conversation in Robert Bolt’s play A Man For All Seasons between Sir Thomas Moore and his son-in-law about giving the Devil the benefit of the law:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

More’s point was that even though he did not agree with his opponent he would give his opponent the benefit of the law.  That appears to have been what was going on with the BC Law Society.  They did not agree with TWU but, thankfully, they supported the rule of law.

We now await word from the Nova Scotia Barrister’s Society, The Law Society of Upper Canada, and The Law Society of New Brunswick.

The post BC Law Society Approves TWU Law School Graduates appeared first on CCCC Blogs.

On March 24 I, along with my colleague Derek Ross, represented Canadian Council of Christian at the Supreme Court of Canada hearing on the Loyola High School case in Ottawa.  Loyola High School is a Jesuit school located on the outskirts of Montreal that objects to the Quebec Government’s insistence that it not be “confessional” (or religious) when it teaches the province’s Ethics, Religion and Culture curriculum.  Below are the notes I made while listening to the arguments.  At the end of this post is a link that will take you to the video of the hearing itself.

Barry W. Bussey and Derek Ross, Counsel for CCCC (written submissions only) at the attendance of the Loyola High School Case on March 24, 2014 at the Supreme Court of Canada.

Barry W. Bussey, Mark Philips (Counsel for Loyola), Derek Ross, at the attendance of the Loyola High School hearing on March 24, 2014 at the Supreme Court of Canada.

 Loyola’s Argument

In today’s hearing Mark Philips, Loyola’s lawyer, informed the Court that Loyola does not take issue with the ERC program, its objectives, and its content.  However, it does object to being told how it is to teach its own religion and how it is to teach the ethics component of the curriculum.  The government demands that Loyola be agnostic in its teaching.  As Philips pointed out to the Court, it is simply unrealistic to expect a religious school to jettison its core purpose and self-understanding – even for a short time.

Justice Abella asked how far a denominational school should be allowed to teach perspectives that are not in keeping with Charter values.

Philips pointed out that Loyola is not asking for a blank cheque and recognizes that religious teachings are always subject to what is best for the common welfare.  However, Abella appeared to be unclear as to where the line was to be drawn between government’s interest to promote a greater awareness of the diverse religious views and the right of a religious school to be exempt from the ERC course.

Justice Rothstein suggested that Loyola’s request for an exemption would require a greater intrusion of the state into religious schools because it would now have to investigate each school on a case by case basis to determine if a school’s proposed curriculum is equivalent to the ERC.

Philips suggested that it would only involve those schools that make a request for an exemption.  The Charter would require that there be a mechanism for accommodating religious belief, and once the school has satisfied the legitimate concerns of the state in its curriculum objectives and content, the state should allow the school the opportunity to carry out its responsibility without the state demanding that it do so in a non-confessional manner.

One of the state objectives, noted Justice LeBel, was to encourage dialogue, and there was nothing in Loyola’s documents describing how this will be addressed.

“If one knows anything about the Jesuits,” quipped Philips, “it is that they are not afraid of dialogue.”  The response brought a round of laughter throughout the courtroom.

Philips pointed out that even if a student opposes the religious teaching of the school and doubts whether God exists, he would still be able to get an A on his paper as long as it was well-reasoned.  Philips was making the point that Loyola is all for dialogue.

 A group shot of some of the lawyers at the Supreme Court of Canada hearing on the Loyola High School case on March 24, 2014.Justice Rothstein wondered if maybe the answer to the matter is to have Loyola hire a non-Catholic teacher to teach the course. In response, Philips argued that once the school meets the objectives and content of the state, the state should not be prying into the beliefs of the teacher.

Justice Abella raised a point of what is equivalent.  She questioned how Loyola’s approach will assist the state’s goal of increasing awareness of diverse religious views and practises when Loyola will be judgmental against those rules and practises.

The problem, noted Philips, is that religion and ethics are the very core of why Loyola exists – Loyola cannot be neutral with regards to religion.  Obviously, Loyola will be more than compliant in presenting the various religious views and practises of other groups– including their ethical positions – but Loyola exists as a Catholic school and must remain true to that since it is the heart of the program.

Justice Moldaver stated that dialogue is “hobbled” if the state has its way and does not allow a teacher to enter into a dialogue with the student about the teacher’s position.  Philips agreed that there is an irony here that under the guise of diversity: the ERC is presenting an agnostic version of diversity; and under the guise of dialogue it is preventing the teacher from entering into dialogue.

Philips briefly addressed the issue of corporate religious freedom and was questioned by Justice Abella about whether religious freedom belongs to  the shareholders.  She appeared to be concerned that the argument of corporate religious freedom would mean that businesses have that right.  Philips responded that he was not suggesting that Hudson’s Bay Company had religious freedom.  Rather it is the corporate right of a religious community.  Such a community often is incorporated to carry out its business, but you have to look at the nature of the institution.  Justice LeBel suggested that corporate religious freedom is that of community structures of religious communities.

Justice Moldaver asked whether the Court has to go down the road of corporate right to religious freedom to decide this case as the case revolves around an administrative decision by the state over whether Loyola’s request to teach a different course was equivalent to the ERC.

Philips agreed that Loyola’s case does not fall or rise on the issue of corporate religious freedom.

Quebec’s Argument

After the various interveners presented, Mr. Benoit Boucher, lawyer for the Attorney General of Quebec, presented the province’s position.  Boucher’s main emphasis was that the Minister of Education looked at the whole context and content of Loyola’s proposal and decided that it was not equivalent to Quebec’s ERC program.  For example, there could be no dialogue under Loyola’s regime.

The ERC is a course of discovery, according to Boucher.  The students are encouraged to understand the many different opinions that are out there and develop their own position based on their own values.

Justice Moldaver noted that under the ERC there would be arguably less dialogue because the teacher would not be able to share with the students his or her own position.  Boucher responded that a teacher is one that stands in authority, and there will be no dialogue in the classroom if the teacher says, “Here is what I think….”  The students will not freely express their views under such a program.  The Loyola course and the government’s course is not the same; it is not equivalent.

Boucher stated that the government is not preventing Loyola from teaching Catholicism – they can speak their faith.  Justice LeBel noted that the government may not be preventing them from teaching their faith, but they are compelling them in this course to be agnostic – it might be a “pinch of salt,” but for Loyola it is a very important “pinch of salt.”

Boucher maintained that Loyola has stated that it has no problem with the content and objectives of the ERC and it will not have the effect against their faith as they claim.  The government even gives credit for the teaching of Catholicism outside of the ERC, but for this program it is not to indoctrinate but to teach about the other religious communities.

Boucher argued that Loyola is concerned about the position of the teacher, but there has been no evidence of this issue before the trier of fact (the lower court).  The program is not equivalent by its very nature – and the Supreme Court in the S.L. Case has determined that the ERC program is constitutional.  The government has spent a considerable effort to get the opinions of various experts to ensure that this program would meet its objectives of increasing tolerance and respect of others.  All of the experts support the Minister’s approach.  There is no convincing evidence that this program violates religious freedom.  The course is neutral with respect to religion.  But Loyola is not neutral, and therefore it is not an equivalent course.

He also noted that Loyola can hire qualified teachers to teach this course if they are unable to find a teacher who cannot teach the course in a non-confessional way.  They would be able to ensure that such an outside teacher would not discredit the Catholic faith.  Therefore, Loyola has options to minimize the risks that they have raised on this appeal.  In short, the ERC is neutral and was confirmed by the intellectual experts. The province is flexible for schools like Loyola to teach its religious faith but it cannot do so in a way that would take away from the goals of the ERC curriculum.

Boucher then addressed the matter of corporate religious freedom and re-iterated the government’s position that religious freedom is the right of the individual. There is religious freedom for individuals to meet together to pray and so forth, but there is no corporation that has religious freedom.  How can anyone determine what a corporation believes?  Is it the shareholders?  Is it the teachers?  Who determines such things?

Conclusion

I was impressed that the court seemed to be really wrestling with the issues that are raised.  My suspicion is that the Court will try to decide this matter without getting into the corporate religious freedom right.  My guess is that they will make the decision based on administrative law and whether the minister of education has properly used her discretion in making the decision not to accept Loyola’s alternative educational program.  That will be unfortunate, as this is certainly a great opportunity for the Court to finally get to the bottom of the matter of religious freedom for religious groups.  Having a positive decision on this now would be helpful in the future.

It was a great opportunity for me and Derek to meet with other legal counsel, fellowship with them, and discuss the issues.  History was made when both Ruth Ross and her son Derek Ross could be together in court – a mother and son team.  That was such a great thing to see.

Ruth Ross (Counsel of Christian Legal Fellowship), and her son Derek Ross (CCCC). Mom and son together at the Supreme Court of Canada.

You can watch the hearing at the Supreme Court’s website:  http://www.scc-csc.gc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=35201

Canadian Council of Christian Charities factum:  http://www.scc-csc.gc.ca/factums-memoires/35201/FM080_Intervener_Canadian-Council-of-Christian-Charities.pdf

The post Report From Court on Loyola Hearing – March 24, 2014 appeared first on CCCC Blogs.

Now that is a question to talk about around the water cooler!  The other questions being asked include:

• Are veganism, ethical humanism or pacifism creeds?
• Can a school tell a student he or she can’t bring a same-sex partner to the prom?
• What obligations do employers have to accommodate religious holidays for non-Christian staff?
• Do they have to give staff paid days off or ask them to use vacation days?
• What obligations do hospitals have to meet patients’ food requirements because of their religion?
• How much can co-workers talk about their faith while at work before it violates other people’s rights?
• How does a person know if their comments on religion in the workplace, or when providing a service, have crossed a line and become harassment?
• Can prayers be held within public schools during school hours?
• Where does the duty to accommodate creed beliefs and practices in public space begin and end?
• Should the definition of creed, itself, be updated and, if so, how?

OHRC’s work in this area deserves to be taken seriously.  The final policies and reports on creed that result from this intense review will affect the religious practise of Ontarians for generations to come.  Not only Ontarians, but all Canadians need to be watching what is going on.  What happens in Ontario concerning human rights can have a major impact right across this country.

Given the gravity of the long term impact it is heartening to see that the OHRC is requesting public input.  You may want to take advantage of this opportunity and complete the survey while it is still open.  It does not take very long – for your convenience I have copied the questions of the survey below.  This will allow you to prepare answers to the questions ahead of time and to see the full survey.

While you work on the survey I will be working on more analysis of the questions the OHRC is asking.  As I post my thoughts I look forward to having a discussion with you on these very important questions.

The survey is found at:  https://fluidsurveys.com/surveys/ohrc-3/human-rights-and-creed-survey/

 Creed Human Rights Survey

 Introduction

The Ontario Human Rights Commission (OHRC) is updating its 1996 Policy on Creed and the Accommodation of Religious Observances. The aim of this survey is to hear from individuals, religious and other community members, employers and other groups on what creed means, peoples’ experiences of discrimination based on creed, its root causes, as well as challenges and success stories for accommodating creed beliefs and practices.

For more detailed discussion of these and other issues, see Human rights and creed: emerging issues. Your responses to this survey will help us as we revise the policy.

NOTE: By submitting this survey, you are agreeing to our collection and use of your responses. The OHRC is committed to protecting your privacy and personal information. Survey responses will only be reported on in the aggregate to protect and maintain individual anonymity (i.e. no individuals or specific organizations will be identified in OHRC analysis and reporting of survey results).

A. Demographic questions

The following questions help us get an accurate picture of the demographic make-up of survey respondents. Statistics Canada categories are used in places for comparison purposes. The information will help us gauge how diverse and representative survey respondents are.

1. What is the first letter of the postal code where you live?

• K (Eastern region)
• L (Central region)
• M (Toronto)
• N (Western region)
• P (Northern region)
• Please specify if other:

2. Which category describes you best?

• Under 35
• 35 – 44
• 45 – 54
• 55 and over
• I prefer not to answer

3. Which category describes you best?

• Female
• Male
• Transgender
• I prefer not to answer

4. Do you self identify as Aboriginal?

• No
• Yes, Métis
• Yes, First Nations
• Yes, Inuit
• Other
• I prefer not to answer

4-A. Please specify what First Nation you belong to, or self-identify with:

4-B. Do you live on a reserve?

• Note: A “reserve” is defined here as a “tract of federally owned land with specific boundaries that is set apart for the use and benefit of an Indian band and that is governed by Aboriginal Affairs and Northern Development Canada (AANDC)” (Statistics Canada).
• Yes
• No
• Other
• I prefer not to answer

5. Which category describes you best? You may check more than one category.

• Arab
• Black (African-Canadian)
• Filipino
• Japanese
• Korean
• Latin American
• South Asian (e.g., East Indian, Pakistani, Sri Lankan, etc.)
• Southeast Asian (e.g., Vietnamese, Cambodian, Malaysian, Laotian, etc.)
• West Asian (e.g., Iranian, Afghan, etc.)
• White
• Other
• I prefer not to answer

6. Which category describes you best?

• Buddhist
• Christian
•         Anglican
•         Baptist
•         Born-again Christian
•         Christian Orthodox
•         Church of Jesus Christ of Latter-day Saints
•         Evangelical Protestant
•         Lutheran
•         Mennonite
•         Jehovah’s Witnesses
•         Pentecostal
•         Presbyterian
•         Roman Catholic
•         United Church
• Hindu
• Jewish
• Muslim
• Sikh
• Traditional (Aboriginal) Spirituality
• No religion
•        Atheist
•        Agnostic
•        Spiritual but not religious
• Other
• If you checked “other” please specify:

B. Meaning of Creed

The Ontario Human Rights Code protects people from discrimination based on creed in employment, housing, services, contracts and vocational associations.

7. What do you think creed is?

8. In the past creed has been understood and explained primarily to mean “religion.” How do you think creed may differ from religion, if at all?

9. Do you consider yourself a member of a non-religious community affiliated by creed?

• Yes. Please specify creed:
• No
• I prefer not to answer

10. Do you think non-religious beliefs and practices (such as ethical veganism or pacifism or humanism) should receive human rights protection as “creeds” under the Code?

• Yes
• No
• Maybe
• Why? Why not?

11. Do you think matters of “individual conscience” which may or may not be connected to religion should receive human rights protection as “creed” under the Code?

Note: Conscience may include things like the moral decision whether or not to participate in military activities requiring acts of violence.

• Yes
• No
• Why? Why not?

C. Discrimination trends and experiences

Many people report they face different treatment or harassment because of their creed while trying to apply for a job or while at work, shopping or trying to get a service, or renting an apartment etc.

12.  Have you experienced discrimination

12-A. Was the discrimination related to creed?

• Yes
• No

12-B. What happened?

13. Do you know of other people (individuals or communities) who have experienced discrimination because of creed?

• Yes
• No

13-A. What was their experience?

14. Why do you think creed discrimination happens?

D. Creed accommodation

The Human Rights Code says people should be included and “accommodated’ based on their creed. For example, accommodation for creed at work could include allowing time and physical space for religious observances or providing suitable food choices. Putting such ideals into practice, however, might be challenging sometimes.

15. Have you as an individual ever sought an accommodation for a creed belief or practice?

• Yes
• No

15-A. Have you faced challenges when asking for accommodation?

16. Have you, or your organization, ever had to respond to a creed accommodation request?

• Yes
• No

16-A. Have you or your organization faced challenges when accommodating creed beliefs and practices?

• Yes
• No

16-B. What challenges did you or your organization face, if any, when accommodating creed beliefs and practices?

17. What guidance would you like to see in the updated creed policy to help you with creed accommodation?

E. Other issues

18. Are there other questions or issues that you think are important for the OHRC to consider as part of its creed policy update?

The post Regulating The Sex Lives Of Employees At Religious Institutions: Ontario Human Rights Commission is Updating Our Understanding of Creed appeared first on CCCC Blogs.

The Government of Quebec appears to be of the view that the religious minorities in its employ are like the obnoxious smoker who contemptuously and purposely blows his smoke on the non-smoker.  It gets under one’s nose.  Religious people who wear specific clothing because of their religious faith are obnoxious – they are pushing their religion in a space where religion is not wanted.

This week will be an historic week for freedom of religion in the province of Quebec.  Quebec Premier Pauline Marois’ government is expected to reveal some details of its “Charter of Quebec Values” tomorrow.  The full Charter will not be released until the end of the legislature’s fall session.  The press suggests that one of the expected provisions in this “charter” will be the requirement that all those who receive a salary from the government will not be permitted to wear religious symbols in the workplace.[1] Yet again Justice Rand’s 1953 statement in a religious freedom case from Quebec is applicable, “A religious incident reverberates from one end of this country to the other, and there is nothing to which the “body politic of the Dominion” is more sensitive.”[2]

Religious sensitivity will be in full display in the coming days and weeks in Quebec when Marois’ new charter is released.  It is unthinkable that Canada, known as a welcoming society to people from all over the world, would have a provincial government taking direct aim at public religious expression of its citizens.  Yet here we are.  The fact that this new anti-religious rule is limited to government paid workers is of no comfort.  First, since government paid workers will include school teachers and daycare workers it will send a message to all religious minority students that they need not apply to government careers; and second, this type of state discrimination will only increase. Today it is government paid workers who face this humiliation; who will be the target in the future as government becomes more emboldened after they are successful (which I doubt will be the case in the long term) in implementing this draconian measure?

What could possibly be the motivation for such an arcane policy?  Pauline Marois suggested one possible reason.  She said that “women working in daycares who wear hijabs are in a position to influence children to practice religion.”[3]  Another government official is quoted as saying, “We don’t want children exposed to religious influences in the public sphere. That is a choice that belongs to parents.”[4] These are curious statements.  Especially when you consider the irony that this is from the same government who introduced a mandatory course in the school curriculum that exposes children to the entire gambit of religious practices and beliefs – all without parental consent.  Then, when some parents requested their children be exempted from the course the government refused[5] So much for a government concerned for parental rights over children’s religious upbringing!  By the way, Quebec’s refusal to allow parents to exempt their children from the Ethics and Religious Culture curriculum has been to the Supreme Court of Canada once[6]  and is subject of another case on its way to the same court, the “Loyola School Case.”[7]

The government of Quebec has now firmly entered the field of religion and its expression.  It claims neutrality but its actions belie that claim.  Rather, the government has taken the role of arbiter of what will be acceptable and unacceptable religious expression in society.  Though, in its current form, the charter is limited to regulating the religious expression of government employees there can be little doubt that given time, considering the inflationary nature of state bureaucracy to expand its influence in citizen’s private lives, this policy of “neutrality” will move further toward the private sector employees.  I can imagine that the justification will be along the lines that private sector employees must also be free from religious garb because, while they are not employed by the state, their work is nevertheless regulated by the state.  They are in the “public” sphere – which must be “neutral.”  So expect increased pressure on church run nursing homes or private schools.  Private schools often give state-accredited diplomas.  Therefore, as the logic would flow, they ought to be subject to government regulation in such matters as religious expression.[8]

If the Quebec government has its way the public sphere is about to become bland.  All forms of religious dress in the “public service” will be unacceptable.  No longer will the “public service” look like the public they ostensibly serve.  They will instead have a “neutral” appearance.  Of course, “neutrality” will be what the state says it is.  Like beauty, it is in the eyes of the beholder.  Perhaps the Quebec civil service would do well to wear a uniform – that way there can be little doubt as to what “neutral” clothing means?  Then again, a state issued uniform also has difficulty when you consider that even the RCMP had to make accommodations for religious minorities wearing its distinctive uniform – the Sikh members of the force wear turbans.

While we may be tempted to rely on the Canadian Charter for the protection of minorities, recent Supreme Court of Canada decisions offer little comfort. Consider, for example, the decision involving a Hutterite community in the province of Alberta.[9] For 29 years the Alberta government exempted the Hutterites from having to have their picture taken for their drivers’ license. The Hutterites believe that all picture taking violates the Biblical Commandment that says we are not to make any graven image. For this reason they shun all portraits – including government issued identification. Alberta changed policy when it moved to a digital system for the drivers’ license – no longer would the Hutterites be exempt. The rationale given was that it was to protect against identity theft. This, despite the fact that there was not one case of identity theft of a Hutterite within the 29 years they were exempt from the photo requirement. Also consider that some 700,000 Albertans were without a drivers’ license, yet they were not required to have their picture taken to prevent identity theft. In perhaps the most shocking disregard for the right of religious freedom ever decided by the Supreme Court of Canada since the Charter in 1982, the Court held in favour of the Alberta government. The Court gave deference to the government because it was dealing with a “regulatory” matter and refused to accept the concept that government had to accommodate religion when it changed its policy. The Court reasoned that a regulatory policy of general application was different than the employer/employee relationship which allows an individual to be accommodated. A government could not be expected to make accommodations to specific individuals.“It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief. Laws of general application affect the general public, not just the claimants before the court.”[10]

There is little doubt that the Charter of Quebec Values will be challenged in court.  t is inevitable – simply because it is so foolhardy. A possible argument against this Charter of Values will be the fact that, unlike the Hutterite case, it is a legislation that limits religious freedom directly as opposed to an indirect effect. There is nothing indirect by the Quebec government specifically targeting religious garb that many religious people wear everyday as part of their religious identity.

“A law’s constitutionality under s. 1 of the Charter is determined,” said the Supreme Court, “not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact.”[11] The government’s objective must be important and its’ impact on religious rights must be proportionate. In other words, an extremely important objective will be given more leeway to impact religious freedom – for example, as in the case of war. In a state of war, where the state’s very survival is at stake, religious freedom may be justifiably be curbed than it would otherwise be.

As noted above, the Quebec government objective has to be more than that they want to protect the parental rights to educate children on matters of religion. Giving the government the benefit of the doubt, perhaps they seek to bring about greater societal harmony by removing the religious symbols a person may wear. The government does not want to create employment strife by arguments over religion. There is no evidence to date of such a justification. However, it seems to me, even that argument will fail because such a policy will not bring harmony but division.

One would hope that the Supreme Court will distinguish the Quebec situation from the Alberta Hutterian case and strike down this Machiavellian effort to bully the religious minorities in its employ.  In the Hutterian Case the Supreme Court added a further insult on the Hutterites; the Court said that they still maintained a “meaningful choice” to keep their religious practise because they did not need drivers’ licenses – they could simply hire transportation!  Will the Court see that Quebec has upped the ante more than Alberta did to the Hutterites? In Quebec it is a matter of employment not drivers’ licenses. Will the court see these as similar or different?

If the Court understands the Quebec Government Charter to be similar to Alberta’s decision to change its drivers’ license policy then I suppose they could say the Quebec Government’s religious employees have a meaningful choice. The religious workers could work elsewhere and keep their religious practise. They do not need to work for the Quebec Government. I, for one, will argue vigorously for the right of Quebec’s religious minorities not to have to face such a disconcerting choice.

It is time for the Supreme Court to revisit, at the next opportunity, the concept of giving government deference in regulatory matters that have the effect of violating freedom of religion. A religious minority can never be on an equal playing field vis-à-vis the state. “Meaningful choice,” like “neutrality” will be decided by those who have no power or ability to decide for themselves. To say that a religious person can work elsewhere where they can wear their religious garb is not a satisfactory answer. What message is the government saying to society by implementing such a policy? Is it not saying that, “you are not valued as a citizen if you are so religious that you practise your faith by what you wear?” Where does it end? Is it unacceptable for a Mennonite Order woman to wear traditional plain dress if she were working for the Quebec government? Indeed such traditional plain dress is as much a religious statement as a Muslim woman to wear the hijab.

The Apostle Paul was taken to Gallio, proconsul of Achaia, because “This fellow persuades men to worship God contrary to the law.” Before Paul could answer to the charge Gallio responded, “If it were a matter of wrongdoing or wicked crimes, O Jews, there would be reason why I should bear with you. But if it is a question of words and names and your own law, look to it yourselves; for I do not want to be a judge of such matters.”[12]

Why the Province of Quebec would want to be “a judge of such matters” baffles me.  Certainly the government has more to do than worry about the religious symbols on the clothing of its employees.

The post Has the Religious Worker Become As Obnoxious As A Smoker In The Workplace? The Charter of Quebec Values: A Meaningful Choice? appeared first on CCCC Blogs.

Any requests for the distribution of religious publications in schools must be approved by the Director or designate and subsequently by the Principal, in consultation with the School Council and with pre-approved parental consent.

Again he made a request to distribute Just Pretend.  However the District School Board of Niagara refused the request for two reasons:  first, while the Board is entitled to sponsor the study of all religions without imposing the view of any particular religion – atheism is not a religion.  Second, the book Just Pretend is not a “globally recognized sacred text or authoritative source of any religion.  Rather it was a “secondary publication.”[2]

Mr. Chouinard commenced a complaint to the Human Rights Tribunal that the Board policy discriminated against him and his child with respect to services because of “creed,” contrary to s. 1 of the Human Rights Code.[3]

The tribunal was of the view that “‘creed’ in the Code includes a prohibition on discrimination because a person is atheist…. The purpose of prohibiting discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.”[4]

The tribunal correctly noted that within the Charter concept of “Freedom of Religion” is the protection of “expressions and manifestations of religious non-belief and refusals to participate in religious practice.”[5]  The Board argued that atheism did not fit the definition of religion as defined by the Supreme Court in the “Amselem”[6]decision which said that the person claiming a religious protection must show that:

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.[7]

The tribunal rejected the Board’s interpretation of the law by noting a long line of Canadian case law and international legal norms that specifically protect those who have no religious beliefs as part of the concept of “freedom of religion.”

The confusion, it appears to me, arises from a number of factors:  first, the Human Rights Code uses the term “creed” as opposed to “religion.”  Query whether “religion” and “creed” are one in the same?  Second, section 2(a) Charter jurisprudence, while relevant, nevertheless comes from a slightly different perspective than the Code.  The Charter is concerned with the “state action toward citizen” (or public) context whereas the Code is concerned with the “citizen toward citizen” (or private) context. Third, the Charter also has the word “conscience” which the Code does not have.  Thus, the Charter protection includes both “religion” and “conscience.”  Therefore, the issue of protecting atheists should never be a problem in Charter litigation, because Charter language and the jurisprudence is broader in allowing for protection of non-belief.

While the Code uses the term “creed,” this decision makes it clear that the word “creed” goes beyond the concept of religion (having to do with a system of belief dealing with the divine) to believing that there is no divine.

Mr. Chouinard and the Canadian Civil Liberties Association argued that there should be no religious activities at the school, even after regular classroom time, because by doing so the school was indoctrinating children and that those children who were not permitted by their parents to participate would be singled out.  The tribunal rejected that argument and did not see any discrimination arising from the practise of sending home parental consent forms.

“To find that there can be no promotion of religious ideas or practices in public schools for those who want to participate in them would be to prohibit activities like optional religious clubs in high schools or the provision of prayer rooms,” the Tribunal noted and then continued,

In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces.  Indeed, such a policy could be contrary to Code values of diversity and inclusion.  Creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed.[8]

In the end the Tribunal found the Board policy did not ensure neutrality.  Its lack of clarity led to inconsistency.  If the Board is to have a policy of handing out religious material it must make an effort to encourage a diversity of literature and awareness of the policy. The Code requires that all creeds be permitted to distribute material with parental consent to the student.  The material cannot be limited by “recognized sacred texts.”  “The restriction to sacred or foundational texts excludes some creeds and is therefore discriminatory.  The requirement that there be “global recognition” may also have the effect of excluding emerging or non-traditional creeds.”[9]

The Tribunal has given the Board six months to develop a new policy that meets the Code requirements.

This decision, correctly in my view, ensures that atheists are protected from discrimination.  Most students of philosophy and history would agree that the concept of “freedom of religion” has long held to that position.  Indeed the title of United Nations Special Rapporteur of “Freedom of Religion or Belief” – is indicative that there are belief’s that may not fit the definition of “religion” but are nevertheless protected.

To the extent that this tribunal decision recognizes the protection of atheists from discrimination is laudable.  However, it would be troubling to view this decision as suggesting “atheism” is a “religion.”  The Supreme Court of Canada, as noted above, recognizes “religion” as a system of worship or veneration toward a divine or spiritual object.  There are many “religions” of course; some even suggest that hockey is a religion for some.[10]  However, I suggest that if we constantly widen the definition of “religion” then we lose our ability to understand what we mean by the term.

There is a distinct difference between saying, “My non-religious belief ought to be protected under the legal concept known as ‘freedom of religion,’” and saying “My non-religious belief is my ‘religion.’”  That may be acceptable in a personal context – using the term “religion” as one’s worldview.  However, in law we need to be more precise – “religion” must not be a catchall for everything we want it to be.  It must be distinct.  That is what the SCC in Amselem tried to do.  It is helpful to have such distinctions because it allows us to see the difference when another claim comes around.

Atheists need the same protection as religionists do – no question about that.  But to say that Atheism is a “religion” as understood in Charter jurisprudence – I beg to differ.

[1] R.C. v. District School Board of Niagara 2013 HRTO 1382 at para. 14.

The post Atheists Deserve Protection Too Says Human Rights Tribunal of Ontario appeared first on CCCC Blogs.

Simply stated, their position is that religiously motivated conduct deserves protection on the basis of equality. Such conduct is to be treated no better and no less than the way other “more familiar and mainstream interests” [2]. Or, stated in another way, government is to “treat the deep, religiously inspired concerns of minority religious believers with the same regard as that enjoyed by the deep concerns of citizens generally.”[3]

Eisgruber and Sager argue that it falls upon government to treat religious practices and institutions fairly guided by the following two principles:

“First, no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects.  And second, all members of our political community ought to enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow a broad range of religious beliefs and practices to flourish.” [4]

They understand their approach to be based on ethics rather than a historically defensible one.  Their goal is not to tie the interpretation of the constitutional meaning of religious freedom to the historical context of the founding.  For example, they are not interested in the letters written by the framers or the events that occurred around the time of the constitution’s founding.[5]  “The historical record is notoriously indeterminate and unclear….”[6]  Nevertheless they claim that their position has “a venerable constitutional pedigree.”[7] By that they mean the founders established abstract principles of religious freedom on purpose – to be applied to whatever new developments the future would bring.  Eisgruber and Sager take those constitutional statements to be “what we think they are and were intended to be, which is as abstract principles related to religion and religious freedom and to ask, ‘What is the best interpretation of those statements regarding them as abstract statements about religious freedom?’”[8]

They reject the idea that religion has distinctive virtues entitling it to a special constitutional status.  It is incoherent, in their view, that the “dominant way of thinking about religious freedom in the United States insists both that the Constitution should confer special benefits like regulatory immunity on religious practice and that the Constitution should impose special disabilities on that practice, like starving it of any public support.”[9]  There is both a push and pull that makes the current regime untenable in the long run.

“Equal liberty, in contrast,” they maintain, “denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions.”  Except for the concern of equality there is “no reason to confer special constitutional privileges or to impose special constitutional disabilities upon religion.” [10]

“The question is not whether the state should be permitted to affect religion or religion permitted to affect the state; the question is how they should be permitted to affect each other.” [11]  The separation metaphor (“separation of church and state”) is of little help.  At best it is a marker that no particular denomination is to be the state favorite.  Otherwise it has only confused the situation where there now exists a strange landscape of disagreements with unsatisfactory options “either we treat religion far better and/or far worse than other important human enterprises, or we must treat it as a constitutional orphan.”[12] Missing from this discussion is that the Constitution’s special concern for religion is that of opposing discrimination.

To allow a person to have a unique prerogative to disobey the law, as in the example of a lady who for religious conviction opens a soup kitchen, and is permitted by authorities to do so, in violation of zoning regulations (meanwhile a non-religious person is denied because she does not have a religious conviction) is “unjust on its face, plus it is at odds with the essence of religious freedom because it imposes a test of religious orthodoxy as a condition of constitutional entitlement.”[13] It also comes at the expense of other legitimate public values and purposes.

There is a further problem.  The bark is bigger than the bite.  “Because the idea of a special immunity from laws that everyone is obliged to obey is so anomalous, and so potentially disruptive of legitimate public purposes,” the net result is that the idea of special protection of religion has been limited “to relatively innocuous cases in which the harm to third parties is minor…. As a result, the claimed immunity for religiously motivated conduct, which in principle sounds arrestingly bold, often turns out to be remarkably timid in practice.”[14]  Or, said another way, “strict in theory but feeble in fact.”[15]

At the heart of free exercise exemption struggles is fairness, “no members of our political community [are to] be disadvantaged in the pursuit of their important commitments and projects on account of the spiritual foundations of those commitments and projects.”[16]

Their approach focuses on the equal treatment of religious freedom rather than the value of that freedom.  The state is not to discriminate against religious practises as part of an overall anti-discrimination public policy rather than religious practise being unique requiring special treatment.  They argue that there is a distinction between privilege and protection which refers “not to the fact of constitutional (or judicial) priority, but to the grounds for such priority.  A claim for constitutional privilege requires a showing of virtue or precedence, while a claim for constitutional protection requires a showing of vulnerability or victimization.”[17]  Religious freedom gets protected solely because it is vulnerable to prejudice and ill-treatment not because it is somehow special.

In summary, Equal Liberty is concerned with finding the principles or rules that describe fair terms of cooperation for a religiously diverse people.  It respects the rights of both the religious and non-religious citizens to flourish in living out their beliefs and practices.  It calls upon government to treat all with fairness.  Religious minorities are to be treated no differently than mainstream religious communities.  The religious person has no greater constitutional claim than the non-religious person – they are equal – both have equal liberty.  The state takes no “ultimate truth” claim as to both religious and non-religious values and beliefs that are core to the citizen in question.[18] To gain an exemption the religious person must prove, a) that the law prevents him from exercising his religious belief or imposes an undue burden when he does; b) he must show that but for his religious views he would have been given the exemption.  That is to say his religious belief was not given the same consideration as those non-religious values that were granted an exemption from the law.[19]

Critical Reviews

Eisgruber and Sager’s Equal Liberty has been the subject of much critical thought and as Eisgruber notes such serious attention is “one of the pleasures of writing a book.”[20]  The engaged conversation on the benefits and pitfalls of Equal Liberty makes plain its boundaries but also opens new possibilities for the relationship between law and religion.

First, there is the problem of “levelling down” – i.e. “There is nothing in the equal regard approach that prevents government from suppressing religious and non-religious conscientious objectors alike, provided it does so even-handedly.”[21]  What is needed is some objective standard that assists in the evaluation of whether religion is in fact properly treated.  Marci Hamilton notes that one cannot get away from the fact that the prime motivating reason for enshrining religious freedom in the (U.S.) constitution was the flight of many immigrants from European religious persecution and not anti-discrimination.[22]

Hamilton’s point would be more applicable to the situation in Nazi Germany than in 16^th and 17^th Century Europe.  The Nazi Government persecuted all religions and the world would not be better off – with Equal Liberty there since government would be persecuting all religions equally.  However, in the 16^th and 17^th Century Europe religious persecution appeared to be confined to the religious minorities.  If Equal Liberty were the applied political philosophy in those countries then arguably it would have brought greater freedom as the religious minorities would be given the same privileges as the majority faith community.

Second, what if there is no secular equivalent to weigh the religious exemption sought? Equal Liberty requires the weight given to religious values and beliefs be equal to the weight given to non-religious values and beliefs in similar circumstances.  The problem is how to determine the right bases for consideration?  “[I]t is plausible, in some cases, we shall find no secular analogues to religious claims for conscientious exemptions.”[23]  This is the case, for example, with dress codes yet Eisgruber and Sager maintain that exemptions for religious dress codes should be given even if there is no secular analogue handy – one should “look for analogies that were further afield.”[24]   Webber astutely asks, “Are we not simply casting about for a comparison that will allow us to protect a practice valued because of its religious significance?  If so, we should just say that and act accordingly.”[25]  Perhaps, the only way to deal with a lack of an analogy is to determine whether the state’s interest in protecting liberal democratic values has a greater weight than the religious requirement. However, that would be against Eisgruber and Sager’s approach since it is a judgement made on values rather than equality which forms the fundamental premise of Equal Liberty.

Third, despite the claim otherwise the fact remains that even Equal Liberty does not treat claims of religious and non-religious exemptions equally – it gives more deference to the religious claim.  For example, it claims that the sincerity of the non-religious claimant and the centrality of the values he holds is to be reviewed by the state unlike the religious claimant who gets a free ride from such state evaluation.[26]  Nehushtan argues it is always a challenge for the state to evaluate how central a value is to an individual (whether religious or non-religious) – it will vary from one individual to another.  To say the secular state can evaluate the non-religious claim is only to admit a common epistemic deference to the non-religious objector.  It does not necessarily mean the non-religious objector and the state will have the same epistemic foundation.

Fourth, while religious belief is irrational and based on faith it does not mean the non-religious beliefs are necessarily rational.

Fifth, a state may be politically non-religious but that does not mean the state or its leaders are   culturally non-religious.  Nehushtan notes that Eisgruber and Sager’s approach is situated in the American experience – a secular state within a deep religious culture.

Sixth, it would be a mistake to suggest that the difficulties, associated with the state evaluating the sincerity of the religious objections and the reasonableness of the claim that the objections are central to personhood, cannot be solved – at least in part.  The key to determining when the state ought to grant conscientious exemptions from a legal rule requires a proper understanding of tolerance.  A tolerant person is one who has made a judgement about the values motivating the religious objector and finds those values lacking but is still willing not to “harm” or interfere with the religious objector.  The state is of the view that the religious objector is wrong in his ordering of values that necessitates an exemption from the generally applicable rule.  However, when the state grants the exemption it is being tolerant, though it disagrees with the claimant.[27]

However, such state tolerance has a limit – it is intolerance.  That is to say the intolerant should not be tolerated.  Such limit is described through the principles of reciprocity and proportionality.  Reciprocity is summed up as “acting contrary to what X initially requires towards those who act contrary to what X requires.”  Therefore reciprocity would require the state to limit religious freedom of one who would curtail the religious freedom of others.  The basic philosophical position for tolerance is personal autonomy – the tolerant recognizes the right of another to be wrong.

Reciprocity is balanced by the principle of proportionality which “reminds us that the question is not just whether one is tolerant or not but also what kind and amount of intolerance justifies a specific kind and amount of intolerant response.”  This is done by matching “the nature and amount of one’s intolerant response to the nature and amount of the intolerance one is facing.”[28]  This requires first, “a rational, logical connection between the nature of the original intolerance and the nature of the intolerant response.”  It must be effective.  Second, we should find the least harmful intolerant response that is effective.  Third, it must be the least harmful response to intolerance – proportionate to the legitimate value, right or interest to be protected.

Nehushtan argues that such a position “rejects any approach to granting conscientious exemptions that disregards the content of the relevant conscience.”  It refuses to grant exemptions to those whose “conscience relies on intolerant values.”  The conclusion is that “neutral approaches to granting conscientious exemptions are clearly misguided.”  The state must take sides and take into account the content of one’s conscience.

Jeremy Webber maintains that “we are fooling ourselves if we think we can define a coherent conception of freedom of religion without recognizing that the freedom presupposes an affirmative valuing of religion.”[29] He rejects Eisgruber and Sager’s argument that equality and liberty alone accounts for freedom of religion by placing religious beliefs on par with other beliefs – with no distinctive value.

The formulation of religious freedom after the Reformation stemmed from the reality that one cannot compel another’s interior belief and thought.  It was a matter of internal integrity and also the realization that people were willing to die for their belief.  This tolerance for unconventional beliefs, as Webber points out, was consistent for other commitments to political and economic principles.  Religion happened to be the first principle in which the futility of forcing another’s beliefs was so blatant.  By allowing the freedom of belief one then allowed for the actions – including speech – that were carried out in congruence with that belief.  It was the beginning of the freedom of expression.

Nevertheless religion had something more to it than the other rights that soon developed.  Religion had a distinct value.  That distinctiveness remains.

Consider the question of whether yamulkas should be allowed when headgear is banned by a dress code.  Larry Sager argues that since eyeglasses are permitted equality (rather than special value attributed to religion) requires yamulkas also to be permitted.  However, Webber asks whether we would weigh the yamulka the same as other headgear.  We would not and “The reason clearly is our special respect for individuals’ religious obligations….  The religious nature of the practice accounts directly for the weight we attach to the wearing of the yarmulka.”[30]

Brian Barry‘s position is that once a request is made for a religious exemption one should consider the rule to determine whether “it can be amended to accommodate the religious obligation without establishing a special exemption.”[31] Webber notes the advantages of this approach includes the ease of enforcement, it limits inquiry into other’s religious belief, and holds back the intolerant from the recriminations thrown at those who appear to be getting special treatment.  However the fact still remains that “the revision of the rule is prompted by our concern with its impact on religious believers.”  Further to change the rule would mean that you actually make a greater imposition on the majority than you would otherwise if you simply made the religious accommodation for the individual in question.

Once protection is extended, Webber argues, to the “outward manifestations of belief…the special value of religion begins to play a role in our reasoning.”[32]

What of the idiosyncratic and minority character of beliefs which expose them to disregard?  Eisgruber and Sager argue that such vulnerability of religious practises to prohibition raise an equality claim not dependent on any value of religious practise.  Yet legislation always chooses some practise at the expense of another.  But with religious practise we raise concern – why? Because it is unique.  “They need to show that equality is sufficient to address the moral concerns that arise in the context of religious freedom.  In that they fail.  Many of their own examples quietly attach special value to religious belief and practice.”[33]

What of seeing religious practise as one example of a larger category which is defined in secular terms?  The eyeglasses on the basketball court would be permitted therefore so too the yamulka.  But there is no attempt to compare the anxiety of a yamulka-wearer to the wearer of eyeglasses.  We impute prejudice because it is religious.

It all comes back to the reality that “we must find some way to live together despite our disagreements.  That recognition need not be grounded in noble and refined sentiments.  It may be founded on little more than necessity:  a realisation that the cost of all-out rejection is ruinous and that we had better find some way to get along.  This was, in fact, the spur for freedom of religion in the modern era.  Governments realised – after murderous religious warfare – that the cost of imposing religious conformity was very high, perhaps not even possible let alone desirable.”[34]

Here are more quotes of Webber’s analysis:

It was precisely the readiness of people to stick fast to their religious beliefs and defend them to the death that resulted in their religious commitments being recognised as significant.  People might consider their own beliefs to be important because they were true; they considered others’ beliefs to be important because others manifestly and obstinately took them to be true.  This reveals the great truth that respect for others’ beliefs need not be founded on full substantive acceptance of the beliefs’ validity.  Indeed, in any diverse society, it cannot be.  Instead during the Reformation it took the form of toleration, prompted by the simple fact that peace was better than strife, and peace was only attainable if people put up with each others’ beliefs.”

It has become common to denigrate toleration, seeing it as ungenerous and mean-spirited:  one should not just tolerate beliefs, some would say, one should embrace them.  But we should not underestimate toleration.  In contrast to stronger types of acceptance, toleration takes belief seriously:  by taking one thing to be true, people inevitably reject the truth of other things.  And yet it allows people to live together despite their divergent beliefs:  you do not need to agree; you can even consider others to be badly mistaken, and yet still live in peace.

Over time a number of principles emerged out of the effort to make toleration work.  These included the inviolability of the person against reprisals due to their religious beliefs; the individual’s entitlement to the sanctity of their thoughts; the toleration of rites and practices that others claimed to be central to their beliefs.  And although this was a much harder lesson (one at which we still routinely fail), some people began to recognise the reciprocity between their own demands and those of others, parity between what mattered to themselves and what mattered to others, the integrity of others as moral agents.”[35]

Finally, this quote of Webber is particularly telling:

The only way to understand if values worthy of respect are present is to engage with them, trying to understand them in their own terms and by analogy to one’s own….  A genuine commitment to freedom of religion requires a stance entirely different from a Rawlsian retreat into an artificially constrained public reason.  It requires engagement.  And, paradoxically, it simultaneously requires a measure of reticence, of holding back, of giving others the benefit of the doubt.  The mystery of others’ beliefs remains inexhaustible.  Just as in the first stages of toleration, so today, we continually confront the fact that we will never completely understand, much less accept.  Our effort to evaluate importance and kind, which is essential to any accommodation, must always be tempered by a reticence to judge.[36]

My Concluding Thoughts

Ultimately, it seems to me, it is the acceptance of difference that paves the way for a group of people to grow into a civilized community.  A community where both individuals and different groups of individuals united in a common worldview have the opportunity to live their conception of the “Good Life.”  Religion is a fact.  Despite the secularist optimism of the 1960’s that it would wither away it has remained a major sociological phenomena, not only in our Western liberal democracies but in the world.  Human beings are predisposed to religion – our laws have recognized that reality and have treated it as special.  Despite Eisgruber and Sager’s attempt to explain away religion’s constitutional significance as a special item needing to be specifically protected, our quest remains – why does the law treat religion as special?  To Be Continued!

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