LEST LAW FORGET: Locke’s Toleration and Religious Freedom by Stephen Holt Submitted in partial fulfilment of the requirements for the degree of Master of Laws at Dalhousie University Halifax, Nova Scotia December, 2018 © Copyright by Stephen Holt, 2018 DEDICATION PAGE None of this would have been possible without the love, devotion, and help of my beloved wife. That you stay by my side, Kita, is a constant witness to the grace and love of the One who is our Life and to whom we dedicate this thesis. Those who cannot remember the past are condemned to repeat it. George Santayana ii TABLE OF CONTENTS Abstract .........................................................................................................................................................iv Acknowledgements ........................................................................................................................................ v Chapter 1 Introduction ........................................................................................................................... 1 Chapter 2 John Locke and Toleration ................................................................................................... 4 Chapter 3 Jehovah’s Witnesses and Canadian Toleration ................................................................ 24 Chapter 4 A Brief Introduction to the Charter Right to Freedom of Religion ................................. 49 Chapter 5 Big M and a New Beginning ............................................................................................... 55 Chapter 6 Supreme Court of Canada Cases Since Big M .................................................................. 75 Chapter 7 Conclusion .......................................................................................................................... 153 Bibliography .............................................................................................................................................. 156 iii Abstract The Canadian Charter of Rights and Freedoms guarantees every person in Canada freedom of conscience and religion. I contend that the concept of religious freedom was born out of a history of religious suffering and originally took the form of John Locke’s toleration of religious differences. In Big M, the first Supreme Court of Canada case that interpreted s. 2(a), Chief Justice Dickson recognized the historical context of religious freedom but also tied it to human autonomy, equality, and dignity. An examination of the cases since Big M suggests that when courts think in terms of tolerance, they accord greater protection to religious freedom. When they lose sight of the historical justification and consider religious claims within the framework of equality, there is a tendency to fail to give freedom of religion its due weight and proper place in Canadian society. iv Acknowledgements I wish to thank the Schulich School of Law – Dalhousie University for giving me the opportunity at this stage of my legal career to be involved in this program. Thank you, Professor Richard Devlin, for bringing such enthusiasm and energy to our graduate seminar. I thank the members of my examining committee, Professor Bruce Archibald and Professor Lucie Guibault, for taking time from their busy schedules to read, evaluate, and comment on my work. Most of all, I wish to recognize the important contribution of my supervisor, Professor Diana Ginn. I owe her the greatest debt of gratitude. At several discouraging moments over the past year, when I was ready to put an end to my research, she encouraged me and made me see new directions that I could go in my reading and writing that renewed my interest and sustained me in this undertaking. It was largely through responding to her insights that I was able to distill my thinking into thesis form. You helped me see where I wanted to go. Thank you, Professor Ginn. Lastly, I thank my family for accepting so much change and disruption of their lives so that I could be close to the law school. v Chapter 1 Introduction Pursuant to the Canadian Charter of Rights and Freedoms, everyone in Canada enjoys the fundamental freedom of conscience and religion “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.1 Since the coming into effect of the Charter in 1982, Canadian courts have wrestled with the scope and application of this freedom, often being called on to determine wherein it should be subject to limitation. It is my contention that when courts lose sight of the historical nature of and justification for religious freedom, they have, on occasion, failed to understand and give the right to freedom of conscience and religion its due weight and proper place in Canadian society.2 I begin with two historical perspectives in search of understanding as to the roots of religious freedom, and propose first to examine John Locke’s writing on religious tolerance (henceforth Locke). Locke has been credited with having first given voice to the call for religious freedom.3 A fresh examination of his thinking and its underlying 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 1 and 2(a) [Charter]. 2 In this thesis, I focus on the guarantee of religious freedom. The relationship between freedom of conscience and freedom of religion would be an interesting topic for further examination. Perhaps conscience covers a broad range of beliefs or convictions of which religious beliefs or convictions are just a subset. Mary A. Waldron dedicates a whole chapter of her book, infra note 5 – Chapter 7 “Freedom of Conscience: The Forgotten Human Right” – to arguing for a separate status for a guarantee of freedom of conscience. Perhaps the intent of the framers of the Charter was that s. 2(a) would guarantee freedom related to religious conscience, meaning that s. 2(a) guarantees one single freedom. 3 Benjamin L. Berger, “The Cultural Limits of Legal Tolerance”, (2008) 21 Can JL & Jur 245 at 266, footnote 73 [Berger, “Cultural Limits”]. 1 premises exposes the historical rationale for according religious freedom. Next, valuable lessons may be gleaned from the way Canadian courts protected the religious freedom of the Jehovah’s Witnesses before the creation of the Charter. The religious beliefs of this sect deeply troubled some Canadians at a difficult time in the country’s history and yet Canadian law upheld their freedom to believe and manifest their view of religious truth. The Witnesses also incarnated certain characteristics of religious believers that contribute to the need for religious freedom and serve to illustrate further its underlying historical justification. I then move to a brief introduction to the modern right to freedom of conscience and religion contained in s. 2(a) of the Charter, and subsequently, I examine at length Chief Justice Dickson’s masterful opening interpretation of the freedom found in R. v. Big M Drug Mart.4 I contend that Dickson C.J. laid a broad and solid foundation for religious freedom. He looked to the past and also anticipated the future. He placed the guarantee of this freedom within its proper historical context and provided it with space to live and grow. The foundation that he laid had potential to sustain the interpretation of this freedom through the years. At the same time, however, Dickson C.J. also introduced into the understanding of religious freedom certain concepts drawn from liberal political theory that have come to dominate the way that law views religious belief in Canada. Big M was the promise, and a review of what the Supreme Court of Canada has done with freedom of religion since Big M constitutes the next major part of my work. As I examine the jurisprudence of the highest court, I draw on the work of three legal scholars that have long studied the relationship between law and religion in Canada. On 4 R v Big M Drug Mart Ltd, [1985] 1 SCR 295, [1985] SCJ 17 [Big M]. 2 many occasions, the Court has done well, very well, but I also contend that, on occasion, the Court has lost sight of the historically grounded reasons for religious freedom, has failed to understand why this freedom is so important, and has weakened and left it more vulnerable to limitation.5 Thus, I begin with Locke’s concept of tolerance, rooted in the history of Christian suffering. 5 Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013) at 21. 3 Chapter 2 John Locke and Toleration When the Supreme Court of Canada was first called on to define the nature of the guarantee of freedom of conscience and religion under the Charter, it took time to explore the historical context in which the concept arose.6 In my contention, it did so because freedom of religion is a child of history. In turning to the past, though it did not say so expressly, the Court showed familiarity with the thinking of John Locke, the 17th century English philosopher, whose writing, “A Letter about Toleration”7 is identified as the historical starting point of the call for religious freedom.8 It is essential to return to the source and recall the lessons of history that Locke had learned, to remember the underlying historical rationale for this freedom. His arguments based on historical events assist in properly understanding what this freedom should be even in the present context. As odd as this may now