Canadian Conundrum
M. H. Ogilvie January/February 2002 Americans doubting the truth of Tocqueville’s great paradox of liberal democracy, that equality will overwhelm liberty once a state attempts to impose its version of perfect equality for all, need only look a few miles north to Canada. An experiment to test that proposition has been in progress here since 1982, when the Canadian Charter of Rights and Freedoms, a European-styled bill of rights, was entrenched in the Canadian constitution.Prior to 1982 the protections for religious liberty were those of the common law, subject to the Canadian inheritance of parliamentary sovereignty dating from the English Reformation, which placed the Crown-in-Parliament atop both church and state. As long as the Canadian population was almost entirely Christian in culture and practice, the likelihood for church and state conflict was minimal.
In the handful of cases before 1982 (most resulting from provincial legislation in Quebec in the mid-twentieth century to limit the religious liberty of Jehovah’s Witnesses), the Supreme Court of Canada (SCC) was quick to strike down the legislation and to protect religious freedom on an implied bill of rights theory. The court’s view reflects the natural law origins of the common law, holding that religious liberty is an inherent attribute of being human and a prior condition for society. It could not be trimmed by the positive law except in truly exceptional circumstances.
But since 1982 the courts have turned that older assumption of the common law on its head, citing the charter for the civil law proposition that individual liberties are the gift of the state, to be tailored and trimmed as the state, typically represented by the courts, thinks fit. Americans still see themselves as endowed by their Creator with certain inalienable rights, but this self-perception no longer gathers to Canadians.
Four seemingly innocent sections of the charter completed the constitutional revolution in relation to religious liberty. Section 2(a) guaranteed the fundamental “freedom of conscience and religion.” But the ominous equivalence in that phrase was cut down even further by three other sections: by entrenching “equality” through affirmative action for members of certain designated groups in section 15; by subjecting the entire charter to an interpretation rule requiring that it be read to enhance multiculturalism in section 27; and by limiting the rights guaranteed, so that they are not absolute, but subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In effect, the charter effectively set out the classical conflict of liberty and equality, and then handed the matter over to the courts, without providing any criteria except relativism by which to determine when to tip the balance in one direction or the other.
For Christians this experiment has meant first the erasure of the marks of a once predominant Western Christian culture from public spaces and, more recently, isolation in Christian legal ghettos whose boundaries are drawn increasingly narrow by an appellate judiciary creating a brave new world of perfect equality in which a perfect humanity (i.e., Canadians) will reside. Christians are not noticeably among the groups judicially slated for “equality” in Canada. Quite the contrary!
Judicial erasure of Christianity from public spaces in Canada in the past generation follows patterns elsewhere: the restructuring of the work-week to the “24/7” week; the removal of religion from public schools and colleges and from public events; the reconfiguration of religious accommodation in the workplace as a secular disability; as well as the now normal redrafting of criminal and family law to downgrade legal protection for human life and family life.
Public practice has followed judicial suit. We see it in the circumstantial evidence of denial of employment or promotion on merit in public services, schools, colleges, or by appointment to the bench. We see it in the clear evidence of, for example, the censure by the prime minister’s Office of Christian Clergy for references to Christ and the New Testament in the Swissair crash memorial service in 1998, although Jewish and aboriginal clergy were not censured at all. We see it in the invocation of aboriginal nature gods by the Anglican primate at the installation of the current governor-general in 1999, whose prayers contained no Christian references at all.
The ghettoization of Christians in Canada is made even more disturbing because it appears to have advanced considerably beyond that in any other Western democracy. Equality, as understood by the courts, has trumped personal liberty in religious and many other matters. The most recent decision on the balance of equality and religious liberty by the Supreme Court of Canada in Trinity Western University v. British Columbia College of Teachers on May 17, 2001, is a case in point.
Unsurprisingly, the SCC’s decision had been awaited with considerable apprehension. The crux of the case was the argument that the mere expression of core Christian beliefs about human sexuality within the Christian community is sufficient evidence of a discriminatory attitude to deny Trinity Western graduates the right to work as certified teachers in the public schools. A successful outcome for BCCT would have been particularly horrific: merely being Christian in Canada would have been sufficient legal grounds for exclusion from public employment and public participation. And lest it be thought that the potential for such a legal outcome is delusional, previous appellate decisions balancing the equality rights of homosexuals and the religious expression rights of Christians should administer a sharp dose of what passes for legal reality in Canada today.
In addition to a range of decisions extending the same-sex benefits found in most Western jurisdictions, Canadian jurisprudence has gone much further than that in other Commonwealth jurisdictions in attempting to inculcate secular values—known in Canada as “charter values”— into Christian institutions under the rubric of equality. This has occurred in four ways.
First, when faced with claims for equality for which the positive law did not previously make express provision and to give content to section 15 of the charter, the SCC has selected the criterion of subjective feelings of self-worth by which to determine a valid equality claim: “I’m hurt by your beliefs. My right not to be hurt by your beliefs means that my equality claim takes precedence over your religious liberty claim to those beliefs.” This argument is calculated to please a judicial generation whose personal philosophy is one of Nietzschean self-expressive individualism. Such fail to see that judicial failure to provide a reasoned and reasonable justification for accepting that claim renders decisions capricious, arbitrary, and unworthy of respect in a democratic society. For the SCC, human dignity is to be valued because a complainant says their dignity should be valued. The court never asks why human dignity should be valued. For it to acknowledge the reason given by most religious and some secular thinkers—that humanity is created by God in His own image—would have significant implications for future decisions. Decisions not only about how life is to be lived but also about the protection of life before birth and near-death stances that the court has repeatedly shown it does not wish to countenance. The SCC’s value system is firmly detached from any transcendent value system.
Since the equality provision in section 15 is an empty vessel into which a court may pour whatever content it wishes and, since equality is, by definition, tautologous, it was predictable in 1982 that the judiciary would be faced with numerous suppliants and that it would be difficult to determine the criteria by which to make choices. In law, the available choices are predetermined by who is a claimant—and in Canada, there are several state-funded programs providing public funding for charter litigation to state-approved claimants. Thanks to the generous taxpayer, a vertically and horizontally integrated charter industry thrives.
In cases involving same-sex claims, the SCC consistently honors the claim on the basis that homosexuals have a right to equal dignity with others; a claim with which few in Canada would disagree in relation to political and legal rights. But in cases in which the courts have to balance that claim with the religious liberty claims of Christians under section 2(a), they consistently prefer the section 15 claim by giving this same reason, but without saying why it should be so privileged. Nor do the courts show evidence of searching for solutions that might accommodate both interests, which they ought to do in the very diverse Canadian society.
The 1998 decision in Vriend v. Alberta demonstrates the criterion for equality as well as showing how the SCC has moved against the Christian community and the entire body politic in Canada. In that case, an active homosexual dismissed from his position as a laboratory instructor at a small private evangelical college in Alberta challenged his dismissal by asking the court to “read into” provincial human rights legislation protection on the ground of sexual orientation. The court did just that. It then ordered the Alberta legislature, which had twice debated and decided against this inclusion, to do so—and it did. The subjective hurt feelings of homosexuals was the reason given for this deeply antidemocratic move. That elected legislatures would comply in this and other determinations shows both the dominance enjoyed by the court and how befuddled Canadian legislators are about the fundamentals of democracy. These episodes are deeply troubling signs of the Canadian descent from democracy.
The third move against Christians in Canada by the courts surfaced in the dissenting decision in TWU. J. A. Rowles hinted strongly that Christian institutions (and she cited the Roman Catholic Church, which was an intervener in the case through the Canadian Conference of Catholic Bishops) may be under a legal duty to comply with charter values, although she did not care to specify why or how.
The argument that Christians should consider changing their historical teachings about homosexuality, for example, also surfaced in a 2000 decision under Ontario human rights legislation in Brillinger v. Brockie. There the tribunal fined a small printshop owned by an evangelical and ordered it to complete a printing contract for materials to be distributed to the public promoting the moral equivalence of heterosexuality and homosexuality. The tribunal chided the evangelical defendant for not following the example of the United Church of Canada, one of whose former moderators gave “expert” evidence about Christian “persecution” of homosexuals. The case is currently under appeal. But even if a higher court reverses this decision, it is an ominous development that some tribunals and judges perceive it is now politically safe in Canada to suggest that Christian beliefs be changed to bring them into line with state values.
The fourth move against Christians by the courts is the companion argument to the third: Christians should be excluded from public deliberations in Canada unless they can prove their primary allegiance to charter values over Christian values. This assertion surfaced in the trial decision in Chamberlain v. Surrey School District No. 36 in 1998, which quashed a local school board decision against adopting primary readers about “alternative families.” Homosexual complainants had insisted on this, on the ground that strictly secular principles were to be applied in public decision-making; apparently there were some Christians on the school board!
That decision was overturned unanimously by the British Columbia Court of Appeal on the ground that the religious freedom guarantee extended to the expression of religious insights as well as secular views in public decision-making—but the trial judge was widely praised for her espousal of charter values and was given a promotion.
Which brings us back to TWU. By an 8-1 decision the court decided that the TWU education program should be certified. But it also decided that neither the religious freedom guarantee nor the equality guarantee is absolute. By restricting the exercise of belief to within a religious institution and denying conduct expressive of belief outside, the court thought it had resolved the conundrum. Pity the poor TWU graduates now teaching in the public schools of British Columbia. Their every word and gesture both in and out of the classroom may be scrutinized for breach of charter values. Chamberlain may now be implicitly overturned.
As good Canadians, ever grateful for any crumb the state should drop their way, some Christians were actually pleased that the SCC still permits freedom of belief within the Christian community and the presumption of innocence outside until signs of “intolerance” are manifested. But the tumbler of religious liberty in Canada is 10 percent full, not 90 percent empty. The silence of the court as to what amounts to discriminatory practices and the failure of the court to affirm that Christians may actually speak qua Christians in public places is troubling. Equally troubling is the ambiguity in the majority decision as to whether being a member of a Christian church might be cited as proof of intolerance toward homosexuals. Active engagement on Christian principles in political activities could well be so interpreted following the TWU decision. Prior to the release of the decision TWU was widely expected to be a watershed case. But it is not yet clear in which direction the stream is flowing. The court has not resolved whether religious freedom of expression for Christians is flowing again or continuing to ebb away. I suspect the latter, but hope I am wrong.
If public silence is the legal price for Christians to exist in Canada, as the SCC appears to suggest, then in the 20 years since the charter, Christianity has been both ghettoized and reduced to a quasi-illegal status. A more imaginative and urbane appellate judiciary might have devised more thoughtful approaches to the inevitable conflicts the charter provoked than the either/or approach it has invoked. Recent opinion polls clearly show that on the specific issue of making express legal provision for sexual orientation as a prohibited ground of discrimination, a significant majority of Canadians agree with the directions from the courts. Only a fundamentalist minority would deny political, economic, and social rights. A significant majority also support the extension of “marriage” as a civil legal category, and this is likely to occur in a year or two.
However, these developments need not have been at the expense of religious free expression. Greater judicial willingness to search for more accommodating solutions might have avoided the present stalemate between charter values and religious values. The unfortunate result is that Fundamentalists on each side are directing the culture war that has erupted, with annihilation of the other side as the shared goal.
Toleration for diversity and an urbane understanding of pluralism is a lot to expect in Canada. We have long historical traditions of economic dependency on the state, and a small town cultural attitude at all social levels that rewards conformity and uniformity. The unquestioned assumption that all problems should be fixed by the state by a one-size-fits-all solution has produced citizens who take their values from their political leaders. We seem to lack independent standards by which to judge those values and are too enfeebled by economic dependency to resist those values even when perceived as wrong. All this, combined with a form of parliamentary government that lacks the checks and balances of other modern constitutions and a secret judicial appointments system at the pleasure of the prime minister, probably means there can be little hope for immediate relief.
Unlike the United States, Canada lacks a network of privately funded colleges, voluntary organizations, religious organizations, think tanks, and media, as well as a professional and business class deriving its wealth from independent enterprise rather than state handouts, from which contrary voices might be expected. Moreover, the demands on the Canadian state for “equality” can become more voracious only as long as the courts make the outcome so attractive: a substantive equality of economic rights, not a mere formal equality of political rights.
Originally said to be a shield for liberties, the Canadian Charter of Rights and Freedoms has become a sword for state intrusion into all spheres of life. The public-private distinction has collapsed; personal liberty counts for little. It seems that Tocqueville was right, even if it was not Canada he had in mind. Canadian history might have predicted as much. Christians in Canada may have once enjoyed a monopoly on public influence granted by the state. But that state, under new management, has now turned on them. For the first time they must learn the lessons of true religious liberty and teach them to a doubting nation.
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M. H. Ogilvie is professor of law at Carleton University, Ottawa, Ontario, Canada.