We’re excited to do something a little bit different in this blog post. Today we’re talking to Dr. Barry W. Bussey about freedom of religion and conscience. These two matters have been some of the most important to Barry throughout his legal career, including during his 10-year tenure at CCCC, which he completed in November 2021. We wanted to hear his thoughts and reflections about them as he leaves CCCC.  

Many of our readers will know Barry well. But for those who don’t, Barry hails from Newfoundland, and among many other things, has served as a pastor, worked as a lawyer in private practice, ran for political office, directed public affairs for a church denomination, worked in Washington, D.C. representing the International Religious Liberty Association, and served as CCCC Director of Legal Affairs. In 2019 Barry earned his Ph.D. in law from Leiden University. He has co-edited or edited four books on law and religion and has published a growing number of law review articles.

Our Interview

Deina: Looking at your work over the course of your 10 years at CCCC your focus on religious freedom is very clear. And it seems there are two key elements of religious freedom that have captured your attention: religion as a “prototypical freedom” and the relationship between freedom of religion and freedom of conscience.

Can you explain what you mean by religion as a “prototypical freedom”?

Barry: Religious freedom is foundational: it sets the stage for the other freedoms we enjoy in liberal democracies, like freedom of speech, freedom of assembly, or freedom of association. Looking back specifically to the religious wars of the sixteenth and seventeenth centuries, we see they ultimately led to the realization that belief could not be forced or compelled without bloody consequences. This, in turn, contributed to a political toleration which recognized that the state is not supreme; individual conscience or faith had to be accommodated for the greater good. In this sense, freedom of religion “blazed the path” that led to the development of other human rights. Logically, this also means that if we neglect freedom of religion and conscience, we undermine all other civil liberties.

“…conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith.”

Deina: Speaking of other civil liberties, can you tell us how freedom of religion and conscience interact? And why that matters? What difference does it make?

Barry: The two concepts are often used interchangeably, but in my view, conscience underlies religion, in the sense that conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith. It is, at its heart, the individual’s understanding of the truth and his responsibility to that truth. I would say that, while not all conscience claims may be religious in nature, any appeal to religious freedom must be grounded upon freedom of conscience. This is because religion may be seen as a public or communal manifestation of private, conscientious convictions regarding morality and one’s individual obligation to God.

Deina: What is it about these two topics – religious freedom and conscience – that have attracted your attention?

Barry: From an early age growing up in Newfoundland I was aware of the differences of religion. I lived in an area that was overwhelmingly Anglican, as was my family. But occasionally an ‘outlier’ from the Pentecostal, Catholic, or Salvation Army communities would enter my world. This happened when I went to school and saw that not everyone shared my faith. That fascinated me and still does. Why so many different beliefs or doctrines? Then later, my own family changed denominations and suddenly I was among the ‘outliers.’ Again, it was a time for evaluation – what motivates people to stand out and be different?

“Would I be so committed to my faith, my integrity that I would lay all things down to remain true?”

Later I became interested in conscientious objectors during war. I went on a research project interviewing some twenty-five to thirty men who refused to bear arms during World War II. I tried to live in their world at the time as they shared with me their experiences. These experiences included being ostracized from family and friends, loss of employment (no one wanted a “coward” in their employ), being put in public work camps around Canada at one-half the pay given to the regular conscripts. Some described their fellow conscientious objectors having nervous breakdowns out of anxiety for their spouses and children, who were left on the farm to fend for themselves. Yet, despite it all, they had no regrets that they had followed their consciences. Hearing their stories made an impact on me. Would I be so committed to my faith, my integrity that I would lay all things down to remain true? Serious questions. They remain relevant today.

Deina: What do you see as the most significant challenge to these freedoms?

Barry: In the last ten years we have seen the culmination of various trends which began after the last World War and which are having a dramatic impact on conscience. Most people seem to be unaware of the gigantic legal revolution against the accommodation of religion. It is, in my view, the settled opinion of most academics, the media, political elites and, unfortunately, the legal profession and judiciary that conscience and religion are no longer worthy of accommodation. That is a sea change from what we once understood in constitutional liberal democracies. We once held the view that we are to accommodate religious and conscientious belief and practices, as I mentioned earlier. We were willing to be inconvenienced to allow a person to maintain their integrity. That is now gone.

Deina: Why do you think that is?

Barry: I think it is due to a very cynical conception of the world as a matter of power. He who has the power gets to run his own show. We have lost the concepts of virtue. The cardinal virtues, the Greeks told us, were prudence, justice, fortitude and temperance. The Christian church said, ‘yes, those are good, but we also need faith, hope and love.’

Immanuel Kant, the German philosopher, said, “Virtue is the moral strength of the will in obeying the dictates of duty.” Historically, we had a cultural understanding of our duty to our God, to our family, and to our community. The Greeks told us that we simply cannot perform a function or a skill (the “techne”) without knowing the purpose (“telos”) of why we are doing it. We have lost that second part of knowing the purpose. We are only interested in the function: getting things done, satisfying the senses, without considering the bigger meaning of things – in part, I suspect, because doing so means recognizing not only a higher purpose but a Higher Power.

The culmination of this process in the legal profession came with the TWU law school cases. It was totally disheartening to see my own legal profession be so oblivious of their own history that they could not see the “telos” in that debate. There was no understanding of TWU’s duty to the moral virtues for which it was created in the first place. They could only see the function of a law school (educating lawyers) and not the purpose of producing virtuous lawyers who understood and carried out their duty. Conscience, religion, duty, all was rejected in the pursuit of power. Power is now the currency within which we operate, and quite frankly we see it more and more everyday.

“It will be important to establish a respectful and informed framework to ensure we’re not having conversations about power, but about purpose.”

Deina: Looking at some of those reasons, what do you think should be done in response?

Barry: There are a number of things that I think should be done to effectively respond to these underlying issues. One is to advocate, educate, and potentially litigate as necessary in order to defend the equal dignity and worth of all Canadians. That could include academic work, like my own past book projects (The Inherence of Human Dignity (2021), The Status of Religion and the Public Benefit in Charity Law (2020), Religion, Liberty and the Jurisdictional Limits of Law (2017)), editorials and other columns, seminars; developing and sharing resources to equip Canadians to understand and protect their rights and freedoms and to engage in meaningful conversations with political leaders. It will be important to establish a respectful and informed framework to ensure we’re not having conversations about power, but about purpose.

Deina: Thanks, Barry, for taking the time to talk with us today! We appreciate your insight into the interplay between religion and conscience, and for the very important reminder to always keep the end in mind; of knowing the purpose that underlies the function.

Ways to Engage

Wondering how you can engage in some of the issues raised by Barry? Check out our recent blog post, Advocating for Legal/Policy Changes, that sets out a framework to help you engage wisely.

The post Freedom of Religion & Conscience: What’s the Connection? appeared first on CCCC Blogs.

Should the law accommodate religious conscience in the definition of death? 

That question was the essence of the recent Ontario Court of Appeal (ONCA) McKitty decision (McKitty (Litigation guardian of) v. Hayani 2019 ONCA 805) written by Justice Bradley Miller on behalf of the unanimous court. 

Taquisha McKitty, 27, was on life support for several months. Even though her body’s organs were capable of continuing all normal functions, the fact remained she was brain dead (as defined by a total loss of neurological function). Ontario does not have any legislation that defines death, but statutory references are premised on the medical profession and common law definition.

Her parents challenged the constitutionality of those definitions through an action against the physician who signed the death certificate. The challenge was based on McKitty’s Christian belief that death does not occur until the heart stops beating and hence that to remove her from life support would constitute intentional killing. 

The lower court ruled that the Charter did not apply as the physician was a private party, not a state actor. After arguments were made at the Court of Appeal, McKitty’s heart stopped beating and the appeal became moot. However, the ONCA held it necessary to address the methodology of applying “Charter values” to the development of the common law and to clarify the definition of death in common law. I only have space in this piece to consider the latter question.

On the common law definition of death, the court declared, “Who the common law ought to regard as a human being — a bearer  of legal rights — is inescapably a question of justice, informed but not ultimately determined by current medical practice, bioethics, moral philosophy and other disciplines.” Thus, the common law does not simply defer the legal definition of death to the medical profession but considers a much richer and fuller analysis. As the court observed, “the enquiry is not ultimately technical or scientific: it is evaluative.” 

This reassertion of the law’s sensitivity to human uniqueness as more than the sum of our parts is refreshing. For far too long, our materialist society has ignored the deeper meanings and purposes of human life. It may be trite to say that we are not what we wear, do, or own — we have meaning because we are. Just exactly who and what we are is the subject of rich engagement with the very disciplines the court noted. 

Recognizing that life cannot be reduced to mere technicalities or scientific measurements gets us to the matter of religious conscience and death under the Charter. The lower court denied that McKitty had Charter rights because she was physically incapable of exercising rights and the framers of the Charter did not intend it to apply to “brain-dead patients.”

This position, in my view, works only from a lens that does not appreciate the inherent dignity and value of all human life. It is a mechanical view that can lead to serious problems. As Justice Miller held, the rejection was too broad. 

“A great many persons,” observed Justice Miller, “by reason of immaturity, decline, or other physical or mental impairment, have little or no present ability to exercise many, if not most, of the rights and freedoms guaranteed by the Charter. These impairments have no bearing on their status as subjects of Charter rights. Furthermore, at least some of the Charter rights protect not only one’s interest in doing, but simply in being.

“The rights govern how one is to be treated by others. These include, for example, the right not to be deprived of life and the right to equal benefit of the law.” Indeed. And, as to the notion of what was intended, Justice Miller held that the presumption of the Charter language must be given an inclusive meaning — “Denying the opportunity to make the argument, on the basis of a criterion whose constitutionality is the subject of the litigation, begs the question that is in dispute.”

I suspect this decision will generate significant discussion on many fronts, but its anthropocentric concerns regarding death are a welcomed addition to Charter jurisprudence. And, I might add, the willingness to address religious conscience in future cases of this type is step in the right direction.

This piece was originally published on The Lawyers Daily on Monday, December 09, 2019, https://www.thelawyersdaily.ca/articles/17155/charter-on-death-religious-conscience-legislation-barry-w-bussey

The post Charter on death: Religious conscience, legislation appeared first on CCCC Blogs.