* 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.
Human Rights Commissions
Human Rights Commissions have been given wide latitude to carry out their mandate. Unfortunately, there is no requirement that they apply the standard rules of evidence required by our courts in making their decisions. That is, their tribunals are not bound by the traditional legal standards of procedural fairness, such as the presumption of innocence, the rules of evidence and the rule of law. Without these safeguards, the Commissions are free to act on their own prejudices, instead of the principles of law.
The volume of cases which these Commissions have dealt with on the conflict between religious rights and homosexual rights is too large to list here. However, in nearly every case, the Human Rights Tribunals have ruled in support of homosexual rights over religious rights.
It is fair to say that justice, fairness or logic are not the strengths of Human Rights Commissions. Neither the facts nor the law impede them in their promotion of homosexual rights over religious freedoms. Striving for a balance in these competing rights is apparently not their concern. Where the Problem Lies
Religious belief does not restrict or regulate homosexuals in the public square. Yet the secular values protecting homosexuals are now infringing on the religious sphere, as witnessed in the Brockie, Trinity Western and the Chamberlain v Surrey School Board cases.
The right of protection for sexual orientation is very recent: its legal genesis began in 1995 in the Egan case. It is certainly unreasonable that law, culture and religions must now change to adapt to homosexual demands or, otherwise, face unpleasant legal consequences, exercised by the arbitrary power of the state. This situation has an adverse effect on the practice of religion in Canada, and it impedes religious individuals from attaining true equality.
Maintaining a “just society” while balancing these two competing rights is obviously difficult. It is true that some of the churches, such as the United Church and some jurisdictions of the Anglican Church have adapted their doctrine to fit the homosexual agenda. The reality is, however, that many other faith institutions have not done so, and likely never will. These include the Catholic Church, Conservative Judaism, and Evangelical Churches, Muslims, etc. In effect, the belief of traditional religions on homosexuality is not going to go away. These beliefs have stood the test of time over the centuries and should not be required to adapt to homosexual lifestyle choices, which are currently being promoted and protected by the courts. Citizens are required to tolerate these homosexual lifestyle choices in a just society, but those who raise objections on the basis of their religious faith should not have to face penalties for failing to conform to these demands.
That is, the current position of the courts – that homosexuality is equal to heterosexuality – trespasses substantially on the long held beliefs of traditional religions. A just society has a responsibility, within reason, to protect the freedoms of those who hold traditional religious beliefs. Otherwise, traditional religions will be fatally wounded and ultimately destroyed by the secular state. Further, religious belief is an integral part of a believer’s life and influences that person’s behaviour. For the courts to demand that a believer’s actions in the public square be adapted to the secular interpretation of homosexuality is untenable, since it directly interferes with that person’s belief by forcing him or her to ignore it. This is an intolerable infringement on Canadians’ equality rights under the Charter.
Toleration: A One-way Street
The problem lies in the fact that the courts are giving preference and recognition to homosexual precepts and behaviour in the public square, while, at the same time, denying this right of recognition to those holding religious beliefs. That is, the courts are demanding that those holding a religious belief opposing homosexuality be denied recognition and the right to act on their beliefs in the public square, but they do not require a concomitant response by homosexuals in the public square towards religious believers. This was made clear in the Trinity Western University case when the Supreme Court of Canada held that religious belief does not include the right to interfere with the rights of others, i.e., homosexuals in the public square. Why shouldn’t homosexuals also be required not to interfere with the rights of religious believers in the public square? In short, why is “toleration” only a one-way street? Shouldn’t homosexuals also be required to be tolerant of religious belief in the public square? To allow otherwise altogether contradicts the Supreme Court of Canada decision in Dagenais v Canadian Broadcasting Corporation, [1994] in which Chief Justice Lamer made it clear that no right under the Charter could trump another. He stated at page 877:
A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict … Charter principles require a balance be achieved that fully respects the importance of both sets of rights.
This position was confirmed in the Trinity Western University case, which explicitly stated, at paragraph 31, that there was no hierarchy of rights under the Charter.
It would appear, therefore, in order to prohibit this discrimination from continuing and in order to provide genuine equality under the Charter, both beliefs systems (homosexual and religious) must be permitted to operate freely and be accommodated in the public square in a free and democratic society i.e. on a “to live and let live” basis. This would lead to a fair, reasonable and genuine balancing of rights and would provide true equality under Canadian law, as well as a reconciliation of the two opposing provisions in the Charter.
Unfortunately, however, homosexual activists are intimidating and harassing certain religious believers by their continual legal challenges before the courts and human rights commissions, demanding that the moral beliefs of religion be negated by submitting to their lifestyle standards in the public square. The courts, for the most part, and the Human Rights tribunals have enthusiastically supported homosexual activists in their intimidation of those holding a religious faith. Has this made Canada a “just society”? No.
Egan v Canada [1995] 2 S.C.R. 513.
M v H [1999] 2 S.C.R. 3
R v Big M Drug Mart Ltd. [1985] 1 S.C.R. 295.
Zylberberg v Sudbury Board of Education [1988] 65 O.R. (2d) 641.
Canadian Civil Liberties v Elgin County [1990] 71 O.R. 2d 341.
Trinity Western University TWU v British Columbia College of Teachers (BCCT) [2001] 1 S.C.R. 722.
Ontario (Human Rights Commission) v Brillinger [ 2002] 222 D.L.R. (4th) 174.
Chamberlain v Surrey School Board [2002] 4 S.C.R. 710.
Dagenais v Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 |
