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HOW THE COURTS HAVE BETRAYED RELIGIOUS FAITHS IN CANADA*

* This article is an excerpt from a larger paper which will be presented at the Future of Freedom Conference sponsored by the Canadian Constitution Foundation on October 13, 2007. If you would like a copy of the complete paper, please notify the national office and they will be pleased to send it along to you.

The Charter of Rights has brought confusion and chaos to Canadians because of its conflicting and seemingly irreconcilable provisions between the protection of religious freedom, included in S.2 and S.15 of the Charter, and homosexual rights which were devised, created and written into the Charter by the courts.

One might assume that the protection of religion written in the two sections of the Charter would strengthen religious freedoms in Canada. This, however, has not been the case. The guarantees for religious freedom have, in fact, most often been used by the courts to restrict or narrow religious freedom rather than expand it, and especially so when it comes in conflict with the “equality” rights of homosexuals. These latter rights written into the Charter by the courts have increased and been strengthened step by step by the courts until homosexual rights are now, for the most part, trumping religious rights.

This development is extraordinary, considering that homosexual rights were deliberately excluded from the Charter in 1980-81 in a 22 to 2 vote by the Joint Committee of the Senate and House of Commons, which reviewed the Charter. However, the Supreme Court of Canada clearly believed this was a grievous error and, to correct this omission, “read-in” protection for homosexuals in the equality provision, (S.15) of the Charter in Egan v Canada [1995]. The court did so on the grounds that “sexual orientation” was supposedly analogous to the other protected groups set out in S.15 of the Charter. Once this provision was written into the Charter by the courts, homosexual rights have been steadily increased and recognized so that their relationships are now regarded in law as equivalent in every way to those of heterosexuals.

No Proof of Discrimination Against Homosexuals

It is significant that actual proof of discrimination against homosexuals has never been introduced at any time in evidence in any court in Canada. The courts have, instead, based their decisions for the advancement of the homosexual agenda solely on the assertion by the homosexual litigants themselves that they experienced discrimination in Canadian society. That is, evidence, such as credible data or documentation, have never been introduced to support their claim of discrimination. Instead, the Canadian courts have accepted, as fact, that homosexuals experience disadvantages in Canadian society because of supposed stereotyping and prejudice against them. This unproven presumption by the courts is an indication of their lack of impartiality on the homosexual issue.

Supreme Court’s Groundbreaking Decision on Homosexual Rights

In the M v H [1999] 2 S.C.R. 3 decision, the Supreme Court of Canada made the groundbreaking decision that recognized in law the legitimacy and equality of same-sex relationships to heterosexual relationships. In that case, the court concluded that same-sex partners were entitled to the same family benefits as opposite sex couples. The M v H decision set the stage for the court decisions in favour of same-sex marriage, which was to be the culmination of the Canadian courts’ step-by-step support, protection, promotion and legitimization of homosexual relationships in Canada.

Religious freedom, although written precisely and clearly into two sections of the Charter, was then squared off against homosexual rights, which had been devised, promoted and written into the Charter by the courts. While Canadian Courts were busy providing protection and legal recognition to homosexual relationships by way of the equality provisions in S.15 of the Charter, they were chipping away at religious rights in S.2 and S.15 of the Charter.

Diminished Religious Freedoms

The chipping away of religious freedom began almost immediately after S.15 of the Charter came into effect in 1985 in the decision R v Big M Drug Mart Ltd. [1985]. In that case, the Supreme Court of Canada decided that the Lord’s Day Act, which required the closing of businesses on Sunday, infringed on religious freedom because religious freedom meant not only freedom of worship, practice, and teaching, but also included freedom from coercion, e.g., that the government could not coerce individuals to affirm specific religious belief, such as, in this case, coercing non-believers to observe the Christian Sabbath. That is, the Court held that non-religious individuals have a right to be free from religious observance. This interpretation departed considerably from the long established interpretation of freedom of religion, which, heretofore, had meant that one was free to practice one’s religion without interference from the state. In short, the court emphasized the individual conscience and the rights of non-Christians at the expense of the religious rights of communities of believers.

It is obvious that Sunday shop-closing legislation simply respected the Sabbath observed by the majority of people in society, and protected both shop owners and retail workers from being compelled to work on their day of rest. It did not require anyone to observe the Christian Sabbath as a holy day or adapt to Christian precepts, but merely restricted retail activity on that day. This obvious conclusion, however, was lost on a court intent on exercising its newly acquired powers under the Charter to change the traditional understanding of human rights.

Based on the Big M Drug Mart decision, the Courts then proceeded to eliminate Christian religious exercises and the Lord’s Prayer from the public school system in zylberberg v Sudbury Board of Education [1988] and Canadian Civil Liberties v Elgin County [1990]. In effect, these two cases, Zylberberg and Elgin County, eliminated the Christian character of education in public schools in Canada.

Courts Curtail Religious Belief in the Public Square

The court’s next move was to eliminate the practice of religious beliefs in the public square.

In Trinity Western University (TWU) v British Columbia College of Teachers (BCCT) [2001] which dealt with religious beliefs in the classroom, the Supreme Court of Canada held that although there was a freedom to believe, this was broader than the freedom to act on this belief [in a classroom] and that the freedom to exercise genuine religious belief did not include the right to interfere with the rights of others (i.e., homosexuals) in the public square.

A similar conclusion was reached by the Divisional Court in Brillinger v Ontario (Human Rights Commission) [2002] 222 D.L.R. (4th) 174. In that case, a Christian printer, Scott Brockie was obliged to print the letterhead for a homosexual organization even though the court acknowledged he had a right to his religious belief, just so long as he didn’t bring it to the public square.

In Chamberlain v Surrey School Board [2002] 4 S.C.R. 710, the Supreme Court ruled that although religious parents have the right to participate in public decision-making in the schools, their views must be overridden by the necessity to provide “tolerance” and “diversity” in the public school system, which includes recognizing homosexual rights in the public school system.