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Volume 19, Number 2, 2011 Constitutional Forum constitutionnel

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41 Key ! eoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed Benjamin L. Berger

53 Judges and Relgious-Based Reasoning Diana Ginn and David Blaikie

65 ! e Politics of Hate Speech: A Case Comment on Warman v Lemire Ranjan K. Agarwal

75 McIvor v Canada and the 2010 Amendments to the Indian Act: A Half- Hearted Remedy to Historical Injustice Sarah E. Hamill

Constitutional Forum constitutionnel Volume 19, Number 2, 2011

Key  eoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed

Benjamin L. Berger*

ere is perhaps no more important access Yet the claim at the outset of this article was point into the key issues of modern political that the questions generated by the interaction and legal theory than the questions raised by of law and religion are indispensible contempo- the interaction of law and religion in contem- rary channels into the core questions of mod- porary constitutional democracies. Of course, ern political and legal theory. Recent years have much classical political and moral theory was seen a migration of issues regarding religious forged on the issue of the relationship between di" erence and the nature and structure of the religious di" erence and state authority. John state back to the centre of legal and political the- Locke’s work was directly in# uenced by this is- ory. As western liberal democracies have been sue, writing as he did about the just con$ gura- met with heretofore unprecedented degrees and tion of state authority and moral di" erence in forms of religious diversity, we have watched as the wake of the irty Years’ War. Yet debates diverse political and legal traditions have strug- about the appropriate role of religion in public gled mightily with the interaction among law, life and the challenges posed by religious di" er- politics, and religion. e exigency and central- ence also cut an important $ gure, in a variety of ity of issues of law and religion to contemporary ways, in the writings of Hobbes, Rousseau, Spi- thinking about the just state is evidenced by a noza, Hegel, and much of the work that we now host of high-pro$ le issues such as the Dutch view as being at the centre of the development cartoon controversy; the French political and of modern political philosophy. 1 Furthermore, legal response to the Islamic veil; U.S. debates the mutual imbrications of law and religion in over the presence of religious symbols, such as the development of the western legal tradition the Ten Commandments, in public space; and are many and well established. At the structural the hand-wringing of constitutional theorists level, Harold Berman famously traces the ori- about the appropriate role to be given to religion gins of modern western European legal systems in the cra% ing of new constitutions for transi- to the Papal Revolution begun in 1075. 2 James tional states such as Afghanistan and Iraq. Giv- Whitman shows the extent to which this mutu- en Canada’s o& cial state policy of multicultur- al in# uence is (elusively) true of core doctrines alism, Canadian political and legal philosophy of contemporary law, such as the principle of has long been consumed with issues of cultural proof beyond a reasonable doubt. 3 e relation- di" erence and the law. Religion has found its ship between law and religion has been fertile way to the centre of conversations about multi- soil for both the development of the modern le- culturalism, spawning a host of cases before the gal system and the foundations of modern po- Supreme Court of Canada, a new body of legal litical philosophy. scholarship, and a high-pro$ le public commis-

Constitutional Forum constitutionnel € sion looking at issues of the accommodation of 1. De ning “the secular” religious di! erence. 4 Perhaps the key de# nitional issue at play in Put brie" y, the interaction of law and reli- philosophical and legal debates regarding the gion is the # eld on which questions central to interaction of law and religion is the issue of contemporary constitutional and political the- how one is to understand the idea of the “secu- ory are being debated and worked out. $ e area lar.” $ e word “secular” circulates promiscu- is deserving of philosophical attention because, ously in popular, political, and academic dis- arguably more than any other contemporary is- cussions of modern constitutional democracy, sue in the law, debates about law and religion but its precise meaning and the implications of are exposing crucial fault lines in modern legal the concept for law and public policy are deep- and political theory, some old and some rather ly uncertain and the root of much debate and new. $ e fraught contemporary relationship be- con" ict in this area. At its outer limits, the term tween law and religion raises issues about the is unproblematic; a secular state can be distin- nature of modern law, adjudication, and rights, guished from a theocracy wherein there is no and provides unique access to problems of com- distinction between public authority and reli- munity, identity, belonging, and authority that gious authority. Short of this bright line, how- lie at the heart of contemporary democratic and ever, one # nds a spectrum of de# nitions and political theory. Meaningful study of the rela- understandings of the meaning and demands tionship between law and religion also resists of secularism. It would be comfortingly simple disciplinary boundaries, inviting and perhaps if one could attribute di! erences about the just demanding the insights of history, philosophy, relationship between religion and the law to the sociology, and anthropology. distinction between those who assert a commit- ment to secularism and those who disavow the $ is piece is intended to serve as a kind of concept. Instead, what one # nds in the scholar- philosophical or conceptual primer on a set of ship and jurisprudence is an enormous breadth issues that, whether raised overtly in public de- of conceptions of the secular among those who bates or not, shape and su! use conversations agree that it is a concept of importance in mod- about the relationship between law and religion ern constitutional and political thought. in the modern state. $ e concepts and debates raised are at work in many constitutional orders, Locke’s Letter Concerning Toleration is an and appreciation of these abiding issues is cru- important touchstone for one vision of the sec- cial to understanding the relationship between ular. 5 Locke’s preoccupation in the letter is to law and religion wherever it arises. Indeed, un- distinguish the jurisdiction of the church from derstanding these broader themes is invaluable that of the commonwealth. Locke famously in the comparative study of law and religion, wrote: a point that will be made below. Nevertheless, this short article speci# cally seeks to ground [T]he church itself is a thing absolutely sepa- the examination of these issues in Canadian rate and distinct from the commonwealth. social and jurisprudential soil. In the end, the $ e boundaries on both sides are # xed and hope is not only to provide a broad mapping of immovable. He jumbles heaven and earth to- gether, the things most remote and opposite, certain central theoretical issues at the heart of who mixes these societies, which are, in their the study of law and religion, thereby helping original, end, business, and in every thing, to orient a reader interested in this debate, but perfectly distinct, and in# nitely di! erent from also to give a " avour of the way in which these each other. 6 issues o! er uniquely valuable conduits into key questions in contemporary legal and political $ is vision of the separation of state authority philosophy. from religious authority remains an in" uen- tial conception of the meaning of the secular; a secular constitution is one that achieves a sharp division between church and state. When

€ Volume 19, Number 2, 2011 religion mixes with the authority of the magis- ments that seek to secure an appropriate role for trate (to use Locke’s term for the person wield- religion in public life.10 Accordingly, the term ing state power), one is faced with a breach of a “secular” is a $ ag marking a site of debate about particular understanding of the demands of a the scope and shape of this “appropriate role.” secular polity. One might point to the U.S. Con- stitution’s doctrine of non-establishment as the What, then, are some of the leading posi- quintessential modern expression of this vision tions on the meaning of the “secular” as a legal of secularism. ! e " rst amendment to the U.S. and political concept? Locke’s bare statement Constitution states that “Congress shall make cited above re$ ects one still-in$ uential concep- no law respecting an establishment of religion, tion of the proper place of religion in public af- or prohibiting the free exercise thereof”; and fairs—that it ought to be con" ned to the private so in the U.S. context the movement of public realm, ceding public space to language, argu- funds from state to religion is intrinsically sus- ments, and symbols that can attract the support pect. One commonly referenced counterpoint and allegiance of any citizen, irrespective of to the U.S. example is that of Germany, where his or her religious commitments. John Rawls religion receives all manner of state support, stands as the most prominent and frequently “establishing” religion in a number of ways that invoked exponent of this position on the use of 11 would be anathema in the United States. ! e religious reasons in public decision-making. picture is rather more complex, however, and One of his central arguments is that modern this complexity is telling of an important point constitutional democracy requires individu- that has emerged in contemporary scholarship als, as a matter of civic respect, to bracket their about the nature of secularism. “comprehensive doctrines,” including their re- ligious perspectives, in favour of “public rea- In an important article on comparative is- sons”—reasons that can attract the overlapping sues in law and religion, James Whitman dem- consensus of all of those who view a matter with onstrates that although there is an institutional disinterested reason. 12 On this view, secularism separation of church and state in the United inheres in the withdrawal of religion and reli- States, there is a mixing of religion and politics gious reasons from the public sphere. 13 Applied and religion and law that would be o# ensive to to the interaction of law and religion, this vi- European sensibilities. 7 By contrast, the Euro- sion of the secular requires the independence pean model mixes the institutions of govern- of law and legal decision-making from religious ment and religious institutions to a degree un- in$ uences. acceptable to U.S. eyes, but is far stricter about the separation of politics and law from religious An alternative perspective on the mean- reasons and rhetoric. ! e inconvenient truth, ing and implications of the idea of secularism as Whitman explains, is that “[b]oth represent understands the command that law and public forms of the separation of church and state.” 8 a# airs be conducted on a secular basis as a ges- Whitman’s article points to an important in- ture towards a kind of pluralism or inclusive- 14 sight that has been generated from contempo- ness based on multicultural equality. ! ose rary scholarship regarding the concept of the who take this view of the secular argue that it secular: namely, that there are “secularisms” is not only impossible, but also undesirable, for rather than a single con" guration of the secu- a culturally diverse society to require that reli- lar. A number of scholars working in religious gion be bracketed when one enters into debate 15 studies and political theory have emphasized about law and public a# airs. Parekh, for exam- this point, tracking the diverse manifestations ple, while accepting a “weak” secularism that of the porous commitment to the “secular” in a requires the separation of religious and state variety of national traditions. 9 ! is scholarship institutions, resists a “strong secularism” that shows that, short of serving to distinguish po- would require that “political debate and delib- litical orders from outright theocracy, the term eration should be conducted in terms of secular 16 “secular” serves, at most, as a placeholder for a reasons alone,” arguing that to do so is “un- set of possible institutional and social arrange- wise because it deprives political life of both the

Constitutional Forum constitutionnel € valuable insights religion o€ ers and the moral Justice McLachlin explained as follows: energies it can mobilize for just and worthwhile causes.” 17 Although those who take this “plural- " e Act’s insistence on strict secularism does ist” approach to secularism vary broadly on the not mean that religious concerns have no place in the deliberations and decisions of the limits that they might impose on the in uence Board. Board members are entitled, and in- of religion on public decision-making, all agree deed required, to bring the views of the par- that secularism does not demand the expulsion ents and communities they represent to the of religion from the public sphere. deliberation process. Because religion plays an important role in the life of many com- I have focused thus far on the role that dif- munities, these views will o$ en be motivated fering de‚ nitions of the secular may have on by religious concerns. Religion is an integral one’s view of the appropriate role for religion in aspect of people’s lives, and cannot be le$ at public decision-making. Yet the way one imag- the boardroom door. What secularism does ines the secular has implications for a host of le- rule out, however, is any attempt to use the re- gal issues with which courts have had to wrestle ligious views of one part of the community to in recent years. One’s view of the demands of exclude from consideration the values of other secularism a€ ects the propriety of the display members of the community. A requirement of of religious symbols in public space. Despite the secularism implies that, although the Board is vast di€ erences between their traditions, both indeed free to address the religious concerns the U.S. and France have faced this issue in the of parents, it must be sure to do so in a man- ner that gives equal recognition and respect to display of the Ten Commandments and the other members of the community. Religious wearing of “conspicuous” religious symbols in views that deny equal recognition and respect public schools, respectively. Whereas the issue is to the members of a minority group cannot be processed through the logic of non-establishment used to exclude the concerns of the minority in the United States and through ideas of laïcité 18 group. " is is fair to both groups, as it ensures in France, both are ultimately debates about the that each group is given as much recognition meaning of living in a secular constitutional de- as it can consistently demand while giving the mocracy. One’s approach to secularism may also same recognition to others. 21 a€ ect the di! cult legal question of the margin One sees the complexity and tensions sur- that ought to be a€ orded for religious law to rounding the idea of “the secular” described in operate independently of state interference—a this section re ected, albeit not resolved, in this matter that, in 2004, was debated in Canada in quotation: on the one hand, “strict secularism” the form of controversy about Islamic law-based imposes real limits on the permissible forms of family arbitration. 19 Indeed, one ‚ nds—more or public debate and grounds for legal decision- less explicitly—debates about the meaning and making; on the other, it does not bar religion implications of secularism at the core of much from law and public decision-making, and im- constitutional adjudication about the limits poses obligations of inclusion and respect. Giv- of legal tolerance and the demand for accom- en an array of available and defensible options, modation of religious di€ erence. A recent case how one understands the common injunction heard by the Supreme Court of Canada led it to that a modern constitutional democracy must re ect explicitly on the meaning of the secular be “secular” is crucial in shaping one’s ultimate and the requirements of accommodation and sense of the just relationship between law and tolerance in a multicultural society. In Cham- religion. It is to the related question of the na- berlain v Surrey School District No 36 20 the ture of legal tolerance and accommodation that Court was asked to rule on the signi‚ cance of I now turn. a legislative mandate that public schooling be conducted in a “strictly secular” manner and what this meant for the religiously-motivated decision of a School Board to prohibit the use of books depicting same-sex parented families in a Kindergarten family education course. Chief

 Volume 19, Number 2, 2011 2. Multiculturalism, tive views that may grate mightily on the values and moral positions of society at large, posi- accommodation, and the limits of tions and values that are commonly embedded tolerance in and expressed through the law. Kahn re% ects the true ethical and moral challenge of cultural “Every age,” Paul Kahn writes in his essential pluralism: study of contemporary liberalism, “has its own point of access to ethical and political delibera- Lacking a conviction in the absolute truth of tion. For us, that point is the problem of cul- our own beliefs and practices, we are uncer- tural pluralism.”22 ! e ur-case of cultural plu- tain how to respond to those who live by dif- ralism in modern political history is religious ferent norms. We are all too aware that such di" erence, but questions of cultural pluralism di" erences exist, as we interact with cultures have expanded well beyond their religiously fo- that put di" erent values on life and death, fam- cused foundations; indeed, one might say that ily and society, religion and the state, men and the religious roots of multiculturalism have women. We constantly confront the question of whether some of the practices supported by been hidden by the many other forms of cul- these values are beyond the limits of our own tural diversity that have grown in countries like commitment to liberal moral philosophy and a Canada, the U.S., the U.K., and France. Nev- political practice of tolerance. We worry about ertheless, the imperative to create some form moral cowardice when we fail to respond criti- of accommodation or tolerance for beliefs and cally, and about cultural imperialism when we practices other than those of the majority cul- do respond. 24 ture continues to appear in some of its most challenging contemporary forms in matters of Religious diversity poses these dilemmas stark- religious di" erence. Increasing quantities of ink ly and confronts the law with the question to are now being spilled on the application of doc- which I alluded in the discussion of secular- trines of multiculturalism and accommodation ism—what are the appropriate limits on reli- to matters of deep religious di" erence. ! e con- gious di" erence in a liberal constitutional de- cepts of tolerance, accommodation, and mul- mocracy committed to certain principles and ticulturalism are wedded though distinguish- visions of the good, but for which respect and able; multiculturalism designates a state policy tolerance for cultural di" erence stands as one towards cultural di" erence, whereas toleration such good? and accommodation gesture to legal and policy Legal and philosophical scholarship has responses to instances of di" erence. ! e expres- responded with a variety of attempts to artic- sion of respect for multiculturalism and juridi- ulate a basis for a workable approach to man- cal and political recognition of the need for tol- aging religious and cultural di" erence. At the erance and accommodation is so prevalent as more theoretical end of things, Charles Taylor to seem anodyne. A recent decision by the Su- has expounded an in% uential conception of preme Court of Canada on the permissible use multiculturalism that is based on a politics of of religious law in a secular society begins with mutual recognition. 25 In a similar vein, James the kind of statement that one could # nd in the Tully has wrestled with issues of deep cultural judicial or political rhetoric of most modern di" erence in the Indigenous context by devel- western democracies: “Canada rightly prides oping a conception of treaty constitutionalism itself on its evolutionary tolerance for diversi- that, again, grounds legal and political relation- ty and pluralism. ! is journey has included a ships in recognition and reciprocity. 26 Taylor growing appreciation for multiculturalism, in- and Tully approach the matter from the per- cluding the recognition that ethnic, religious or spective of political philosophy, seeking to de- cultural di" erences will be acknowledged and 23 velop a more robust ethical foundation for a respected.” meaningful form of multiculturalism. Where ! e great di$ culty concealed by these these theories have been thin on practical de- placid statements is that cultural and religious tails, others have sought to work with concepts di" erence carries with it strongly-held norma- of multiculturalism in a manner that generates

Constitutional Forum constitutionnel € principles that can guide the legal management idea of toleration has an ineradicable dimension of the line between tolerance and the protec- of domination woven into its very fabric. 30 Tol- tion of public values, the fraught line to which eration, Brown argues, is a means of inscribing Kahn has pointed. Will Kymlicka’s highly in- and a$ rming the di# erence of minority groups ! uential work is of this second type. Kymlicka’s (the tolerated) while preserving the power and Multicultural Citizenship articulates a model of privilege of the group that gets to do the tolerat- legal multiculturalism based on a distinction ing. Brown’s compelling study suggests that tol- between internal restrictions (rules and norms eration is not, in the end, so tolerant—at least in of a community that bind members within the the sense suggested in most political and legal group) and external protections (principles im- rhetoric. Others have begun to take this insight posed by society that seek to promote fairness and apply it to the practices of legal toleration between minority groups). 27 Kymlicka ulti- of religious di# erence. 31 Guided by Bernard mately argues that “liberals can and should en- Williams’ philosophical insight that true tol- dorse certain external protections . . . but should eration involves ceding territory on matters of reject internal restrictions which limit the right deep importance to oneself, 32 does the protec- of group members to question and revise tradi- tion of religious freedom actually yield tolera- tional authorities and practices.” 28 For Kymlic- tion of the kind promised in the story of legal ka, then, multiculturalism involves inter-group multiculturalism? Carefully considered, legal toleration but requires attention to intra-group toleration may amount to simply the recogni- liberty. More recently, Ayelet Shachar has sug- tion of those points at which the central values gested a form of religious multiculturalism that of a liberal constitutional democracy are not has as its centrepiece the concept of “transfor- troubled or threatened by religious di# erence. mative accommodation.” 29 Shachar defends the When this line of indi# erence is transgressed, importance of the accommodation of diverse the law enforces its commitments and concep- religious cultures while identifying the ways in tions of the good. Are the limits of toleration which women are particularly vulnerable in the precisely the boundaries of what truly matters private spheres, in which most models of secu- to the law, with legal toleration of religion ul- larism permit religion a robust autonomy. She timately serving as a means of enforcing the uses the concept of jurisdiction as a means of liberal culture embedded in modern constitu- providing a balance between respect for and tionalism? % is is arguably the underlying logic tolerance of religious cultures and the protec- and e# ect of the models proposed by both Kym- tion of the rights of women within these com- licka and Shachar; and if this account of legal munities. In her approach, neither religious toleration is accurate, the tools of the law o# er groups nor the state would have a monopoly no easy escape from the multiculturalist conun- on decisional authority as regards the commu- drum that Kahn so poignantly exposes. In the nity; rather they would share jurisdiction with end, the question of the politics of multicultur- de" ned “reversal points” at which community alism and toleration remains a substantial issue members could choose to opt for the state’s ju- in the interaction of law and religion, one that risdiction over that of the religious community. points not only to the value-infused nature of In the end, Shachar argues that such a model legal culture, but also to the complex nature of will provide a due degree of accommodation of legal rights and the adjudication of religion. di# erence while encouraging religious commu- nities to tend to the interests of vulnerable sub- groups, ultimately leading to the liberalization 3.  e nature of rights and the of orthodox communities. adjudication of religion However, features of the models suggested While contemporary scholarship has raised by both Kymlicka and Shachar point to an emer- questions regarding the structure and nature of gent and important strand of scholarship that the legal toleration of religion, the adjudication questions the concept of toleration at a foun- of claims of freedom of religion has exposed is- dational level. Wendy Brown suggests that the sues about the nature of rights and adjudication

€ Volume 19, Number 2, 2011 to which scholarship must now react. ! ese is- dence has been one of the leading contemporary sues are tied closely to the matters discussed sources of cases showing the potential for the thus far—the nature of the secular and the lim- con% ict of rights, cases in which a claim of free- its of toleration. Both secularism and toleration dom of religion comes into con% ict with an- are, at base, proxy concepts for the line-drawing other constitutional guarantee, frequently the that seems intrinsic to the management of deep protection of equality. What should be done religious di" erence in contemporary constitu- when the protection of religious freedom con- tional democracies. ! e core task of constitu- % icts with the protection of equality on the basis tional adjudication of religious freedom—the of sexual orientation? Such cases have demon- central means by which the interaction of law strated that the protection of rights is rarely, in and religion manifests in the modern legal practice, a matter of “trumps.” 35 Con% icts be- arena—amounts to an exercise in de# ning the tween rights and serious con% ict between reli- boundaries of religious liberty in light of the gious freedom and pressing public interests are core values embedded in the public legal or- the rule, not the exception. As such, freedom of der. As courts have engaged in this boundary- religion cases have been particularly important drawing exercise, the adjudication of religious in putting to the philosophic community the freedom has yielded lessons about the structure challenge of thinking about rights as markers of rights and the nature of the adjudication of for a set of interests (among many) rather than religious freedom. Consider two such lessons. as non-negotiable imperatives. ! e dominant theoretical and jurisprudential answer to this First, with respect to the structure and practical reality has been to argue that the key nature of rights, the adjudication of claims of task of constitutional adjudication is that of the religious freedom has shown that it is much balancing of rights and interests through pro- more di$ cult to “take rights seriously” than is portionality tests. 36 One scholar has gone so far 33 imagined by those, like Ronald Dworkin, who as to characterize proportionality balancing as have advocated for an understanding of consti- the “ultimate rule of law” 37 —a far cry from the tutional rights as trumps—as legal principles idea of rights as trumps. whose vindication over other public policy mat- ters is assured by their status as “rights.” Adju- Scholars have pointed to a second lesson dication of matters of religious freedom has put about the nature of adjudication and the struc- this conception of rights under serious stress. ture of the right of religious freedom that ap- ! e normative and ontological “thickness” in- pears to emerge from the jurisprudence and, in volved in religion has made the adjudication of particular, the boundary-drawing that seems claims of religious freedom particularly adept inherent in the concepts of both secularism and at challenging this understanding of rights. Re- legal toleration. ! is incipient line of argument ligious beliefs and practices are invested with suggests that the adjudication of religious free- ideas about and attitudes towards the world, dom inevitably involves the imposition of some ideas and attitudes that are both central to the juridical conception of what religion is, or what religious culture and can be at odds with other about religion really matters, and, in so doing, constitutionally protected goods and weighty imposes a legal # lter on what “counts” as pro- matters of public policy. ! e Supreme Court tected religion. Writing from the U.S. setting, of Canada has put the di$ culty as follows: “In Winnifred Sullivan has put the argument most judging the seriousness of the limit [on freedom starkly in her book ! e Impossibility of Reli- of religion] in a particular case, the perspec- gious Freedom .38 ! e essence of Sullivan’s posi- tive of the religious or conscientious claimant tion is that the use of any concept of religious is important. However, this perspective must freedom requires a de# nition of religion and in be considered in the context of a multicultural, this very act of de# ning religion certain ortho- multi-religious society where the duty of state doxies are imposed while other dimensions of authorities to legislate for the general good in- lived religion and the variety of modes of be- evitably produces con% icts with individual be- ing religious are diminished or excluded from liefs.” 34 In Canada, freedom of religion jurispru- legal protection. “Crudely speaking,” Sullivan

Constitutional Forum constitutionnel € argues, forms of religion that are private, volun- “the secular.” 42 One model of secularism in- tary, and believed rather than practiced (forms volves the retreat of religion from public spaces she refers to as “protestant”) are “free” whereas (secularism 1); another is the general decline of other forms of religion are “closely regulated by religious belief and practice in society (secular- law.” 39 I have argued that adjudication of reli- ism 2). But Taylor’s argument is that the essence gion requires the imposition of a de! nition of of modern secularism is best understood as the religion and that this de! nition is informed by comparatively modern shi& “from a society the cultural commitments of the constitutional in which it was virtually impossible not to be- rule of law itself, a culture of law’s rule that is lieve in God, to one in which faith, even for the deeply indebted to and contiguous with core staunchest believer, is one human possibility components of the political culture of liberal- among others” (secularism 3). 43 $ ere is a great ism, which privileges autonomy and choice over deal to commend this understanding of secu- identity, the individual over the group, and in- larism, but it raises the di" cult question that is sists on a more-or-less stable division between the ! nal conceptual fault line in the interaction the public and private dimensions of human of law and religion that I wish to explore: if reli- life. 40 “Law shapes religion in its own ideologi- gion has become one possible means of human cal image and likeness and conceptually con- # ourishing among many other options, why do ! nes it to the individual, choice-centred, and constitutions continue to single out and protect private dimensions of human life.” 41 Adjudica- religion? tion of rights-based claims cannot be insulated from the informing culture of law’s rule and, as One forceful answer that has emerged in such, involves the imposition of a particular set the scholarship is that “[t]here is simply no good of beliefs about what is of value in the human reason for o% ering religion a priority over other 44 being and the shape of a good society—matters deep passions and commitments.” Larry Sager on which religious communities hold strong and Christopher Eisgruber have been the lead- 45 commitments of their own. ing and most explicit proponents of this view. Re# ecting on the U.S. context, Eisgruber and Sager have argued that there is no defensible ba- 4. Why protect religion? sis for a% ording religious beliefs and actions a particular constitutional privilege. $ eir argu- Attention to the di" culties involved in the ad- ment is not that religious beliefs and actions are judication of religious freedom claims, includ- undeserving of constitutional regard. Rather, ing the manner in which freedom of religion their thesis is a kind of levelling move, suggest- seems readily to fall into con# ict with other ing that the reasons for protecting religious free- rights, gestures to a ! nal—and fundamental— dom can be fully accounted for through more question raised in the scholarship regarding generally applicable constitutional principles the interaction of religion and modern consti- of equality and liberty. A combination of basic tutionalism. $ e variety of claims made under equality considerations and a general liberty free exercise or religious freedom clauses, the principle—a combination that Eisgruber and challenges that these claims pose for recon- Sager call the principle of “Equal Liberty”—is ciliation with public policy, and the manner in su" cient to take full account of what animates which they have drawn civic debate into ques- our instincts to protect religion. $ e protection tions of the degree of moral di% erence tolerable of religious freedom is nothing more, in short, in a secular society, all suggest a foundational than a particular application of constitutional question— why do we single out religious belief protections available to all, irrespective of the and practice for special constitutional protec- speci! cally religious dimension of their beliefs, tion? $ e obvious follow-up is “and should we identity, or actions. 46 continue to do so?” To reach back to the discus- sion of secularism, in his magisterial study of To the question of why we ! nd speci! c ref- the concept and nature of secularism, Charles erence to religious freedom in constitutions Taylor explores three ways of thinking about around the world if the “problem” of religious

€ Volume 19, Number 2, 2011 freedom is wholly answerable with a generally Yet separate from (if related to) these moral applicable Equal Liberty principle, Sager and and utilitarian answers to the question, “why Eisgruber answer by noting that history has protect religion?”, there is also a tantalizing on- shown that religion is “especially vulnerable to tological possibility: does freedom of religion hostility or neglect.” 47 Speci! c protections of re- serve as a marker for a kind of anxiety about ligious freedom are, on this view, simply mark- metaphysical certainty within the law? Perhaps ers for a basis on which the Equal Liberty prin- the special protection given to freedom of reli- ciple has o" en been breached. # ere is nothing, gion & ows in part from a recognition that re- however, distinctively valuable about the “re- ligion asks the kinds of questions and a$ ords ligion” in freedom of religion that attracts (or forms of answer to which the law is neither in- ought to attract) constitutional protection. clined nor equipped to respond. And if these questions and answers are both important and Other scholars have o$ ered a very di$ er- unanswerable within the law, freedom of reli- ent answer to the question of why constitutions gion may be a cautionary principle—an ex- speci! cally protect religion, explicitly rejecting pression of law’s modesty about what it can say the idea that abstract principles of equality and about the structure of things and meaning of an liberty give su% cient account for the special individual or community’s experiences. regard that constitutions give to religious free- dom. “[W]e are fooling ourselves,” one author writes in direct response to Sager’s argument, 5. Concluding comments “if we think we can de! ne a coherent concep- tion of freedom of religion without recognising # e select key theoretical issues canvassed in that the freedom presupposes an a% rmative this piece demonstrate the manner in which valuing of religion. If we attempt to do so, we al- the interaction of law and religion has emerged most always end up smuggling in a covert valu- as a uniquely valuable contemporary site for ing of religious practice.” 48 In the constitutional re& ection on questions central to the philoso- protection of religion one ! nds an abiding sense phy of law. Be it the nature of adjudication, the that religious views have a special place in the structure of rights, the role of law in contem- way in which a person makes sense of his or her porary public life, or issues of law’s relation- world and that religion speaks to a dimension ship to moral and cultural diversity, cases and of human existence deserving of regard and re- controversies about religion and religious free- spect. Although equality and liberty are neces- dom arising in modern western constitutional sary aspects of the constitutional protection of orders have a$ orded invaluable avenues into religious belief and practice, freedom of religion central questions of social and legal philosophy. cannot be accounted for separate from a soci- # e interaction of law and religion has provided etal recognition of the unique depth and impor- unique traction to scholars working on basic is- tance that religion continues to hold for fellow sues in religious studies, political theory, legal members of our political community. Certain philosophy, and jurisprudence. In concluding writers take a more utilitarian approach, em- this piece, I wish to gesture to an issue that sits phasizing the goods that religion (perhaps at the foundation of all of these questions. uniquely) brings to society, bene! ts that better Any or all of these various lines of inquiry explain why religion is and ought to be given opened up by attention to the modern politi- distinct constitutional regard. Although recog- cal and juridical interaction between law and nizing its potentially pernicious faces, Parekh religion ultimately require re& ection on a fun- notes that religion has historically served as an damental question in legal theory, the nature important counterweight to state authority, ani- of “the rule of law.” It is a precious conceit of mating a number of emancipatory movements, modern constitutionalism that law enjoys au- “nurturing sensibilities and values the latter ig- 49 tonomy from culture. Its role is to sit above the nores or suppresses,” and providing a host of realm of the cultural, curating but not itself other bene! ts to society. participating in the world of vying ontologies, epistemologies, and metaphysics that is incum-

Constitutional Forum constitutionnel € bent in a society marked by deep cultural and Court of Canada on cases originating in the religious di! erence. " is conceit is an aspect Province of Québec. " e Order-in-Council estab- of law’s # erce commitment to its own neutral- lishing the Commission described its mandate ity as the ground for its authority. Yet each of as follows: to “a) take stock of accommodation the veins of inquiry identi# ed in this piece—the practices in Québec; b) analyse the attendant meaning of the secular; the limits of legal toler- issues bearing in mind the experience of other societies; c) conduct an extensive consultation on ance; the structure of rights and nature of adju- this topic; and d) formulate recommendations to dication; and the basis for the protection of re- the government to ensure that accommodation ligion—destabilizes the separation between the practices conform to Québec’s values as a plural- role and function of culture and the rule of law. istic, democratic, egalitarian society.” As one digs deeply into each or any of these is- 5 John Locke, “A Letter Concerning Toleration,” in sues, the nature of the constitutional rule of law ! e Works of John Locke: A New Edition, Cor- as one means of ordering experience, of making rected , vol VI (London: Tegg et al, 1823) 2. sense of the world, of providing a horizon with- 6 Ibid at 21. in which to interpret human a! airs, becomes 7 See James Q Whitman, “Separating Church and more and more di$ cult to ignore. In this, one State: " e Atlantic Divide” (2008) 34:3 Historical Re% ections 86 [Whitman]. sees that the great richness of the study of the Ibid interaction of law and religion lies not solely in 8 at 90. Whitman’s central argument in this piece is that the reason for this di! erence be- the study of identity and diversity or in what it tween the approach to the separation of church suggests about religion in the modern consti- and state in the United States and that found tutional democracy; enormous challenge and in northern continental countries is not (as is edi# cation inhere in what the study of law’s re- conventionally asserted) the Protestant in% uence lationship with religion suggests and invites by in the United States and that of Catholicism on way of re% ection about the nature of law itself. the Continent. Rather, the explanation is found in the fact that, in northern European countries, “the state, over many centuries, has gradually as- Notes sumed many of the historic functions performed * Associate Professor, Faculty of Law and Depart- by the medieval church,” whereas, in the United ment of Philosophy, University of Victoria. " e States, “historic church functions have generally author wishes to thank Andrew Harding for either been le& to the churches, or else they have his comments on earlier dra& s of this piece and died out entirely” (at 91–92). Emily Lapper and Ilona Cairns for their out- 9 See, e.g., Janet R Jakobsen & Ann Pellegrini, eds, Secularisms standing research assistance. (Durham: Duke University Press, Public Religions in the 1 See Mark Lilla, ! e Stillborn God: Religion, Poli- 2008); José Cassanova, Modern World tics, and the Modern West (New York: Alfred A (Chicago: University of Chicago Knopf, 2007). Press, 1994). Formations of the Secular: Christian- 2 See Harold Berman, Law and Revolution: ! e 10 Talal Asad, ity, Islam, Modernity Formation of the Western Legal Tradition (Cam- (Stanford: Stanford Univer- bridge: Harvard University Press, 1983); Harold sity Press, 2003). Berman, ! e Interaction of Law and Religion 11 See also Robert Audi, “Moral Foundations of (Nashville and New York: Abingdon Press, 1974). Liberal Democracy, Secular Reasons, and Liberal 3 James Q Whitman, ! e Origins of Reasonable Neutrality Toward the Good” (2005) 19 Notre Doubt: ! eological Roots of the Criminal Trial Dame Journal of Law, Ethics & Public Policy (New Haven: Yale University Press, 2008). 197. For a debate regarding the role of religious 4 See Gérard Bouchard & Charles Taylor, Building considerations in public debate and politics, see Religion in ! e Future: A Time for Reconciliation (Québec: Robert Audi & Nicholas Wolterstor! , the Public Square: ! e Place of Religious Convic- Consultation Commission on Accommodation tions in Public Debate Practices Related to Cultural Di! erence, 2008). (Lanham, Md: Rowman & " e Government of Québec established the Little# eld, 1997). Political Liberalism Commission that authored this report in 2007 12 John Rawls, (New York: Co- in response to public concerns regarding the ac- lumbia University Press, 1996). Formations of the Secular supra commodation of religious di! erence, including 13 In , note 10 at 199, controversies regarding decisions of the Supreme Talal Asad critically observes that “[f]rom the

€ Volume 19, Number 2, 2011 point of view of secularism, religion has the op- bridge University Press, 1995). tion either of con! ning itself to private belief and 27 Will Kymlicka, Multicultural Citizenship: A Lib- worship or of engaging in public talk that makes eral ! eory of Minority Rights (Oxford: Claren- no demands on life. In either case such religion don Press, 1995). is seen by secularism to take the form it should 28 Ibid at 37. properly have. Each is equally the condition of its 29 Ayelet Shachar, Multicultural Jurisdictions: legitimacy.” Cultural Di$ erences and Women ’s Rights (Cam- 14 See Tariq Modood, Multiculturalism: A Civic bridge: Cambridge University Press, 2001). Idea (Cambridge: Polity Press, 2007); Bhikhu 30 Wendy Brown, Regulating Aversion: Tolerance Parekh, Rethinking Multiculturalism: Cultural in the Age of Identity and Empire (Princeton and Diversity and Political ! eory (Cambridge: Har- Oxford: Princeton University Press, 2006). vard University Press, 2000) [Parekh]. 31 I did so in Benjamin L Berger, “# e Cultural 15 See, e.g., Je" rey Stout, Democracy and Tradition Limits of Legal Tolerance” (2008) 21:2 Canadian (Princeton: Princeton University Press, 2004); Journal of Law and Jurisprudence 245. Michael J Perry, Under God? Religious Faith and 32 Bernard Williams, “Tolerating the Intolerable” Liberal Democracy (Cambridge: Cambridge Uni- in Susan Mendes, ed, ! e Politics of Toleration in versity Press, 2003); Paul Horwitz, “# e Sources Modern Life (Durham: Duke University Press, and Limits of Freedom of Religion in a Liberal 1999) 65. Democracy: Section 2(a) and Beyond” (1996) 54:1 33 Ronald Dworkin, Taking Rights Seriously (Lon- University of Toronto Faculty of Law Review 1. don: Duckworth, 1977). 16 Parekh, supra note 14 at 322. 34 Alberta v Hutterian Brethren of Wilson Colony, 17 Ibid at 324. [2009] 2 SCR 567, 2009 SCC 37 (CanLII) at para 18 # e term laïcité refers to an approach to religion 90. and the public sphere that, rather than emphasis- 35 See, e.g., AC v Manitoba (Director of Child and ing state neutrality and free exercise, focuses on Family Services) , [2009] 2 SCR 181, 2009 SCC the complete separation of politics and religion 30 (CanLII); Multani v Commission scolaire and the creation of a common (and secular) Marguerite-Bourgeoys , [2006] 1 SCR 256, 2006 public identity. For accounts of this concept of SCC 6 (CanLII); Trinity Western University v Col- laïcité , see Whitman, supra note 7 at 93; Yolande lege of Teachers , [2001] 1 SCR 772, 2001 SCC 31 Jansen, “ Laïcité , or the Politics of Republican (CanLII) . Secularism” in Hent de Vries & Lawrence Sul- 36 See, e.g., Robert Alexy, A ! eory of Constitutional livan, eds, Policial ! eologies: Public Religion in Rights , trans by Julian Rivers (Oxford: Oxford a Post-Secular World (New York: Fordham Uni- University Press, 2002); Aharon Barak, ! e Judge versity Press, 2006) 475; Talal Asad, “Trying to in a Democracy (Princeton: Princeton University Understand French Secularism” in Hent de Vries Press, 2006). & Lawrence E Sullivan, eds, Political ! eologies: 37 David M Beatty, ! e Ultimate Rule of Law (Ox- Public Religion in a Post-Secular World (New ford: Oxford University Press, 2004). York: Fordham University Press, 2006) 494. 38 Winnifred Fallers Sullivan, ! e Impossibility of 19 See Natasha Bakht, “Family Arbitration Using Religious Freedom (Princeton and Oxford: Princ- Sharia Law: Examining Ontario’s Arbitration eton University Press, 2005). Act and its Impact on Women” (2004) 1 Muslim 39 Ibid at 8. World Journal of Human Rights 1022. 40 I advanced this argument in Benjamin L Berger, 20 [2002] 4 SCR 710, 2002 SCC 86 (CanLII). “Law’s Religion: Rendering Culture” (2007) 45:2 21 Ibid at para 19. Osgoode Hall Law Journal 277. 22 Paul W Kahn, Putting Liberalism in its Place 41 Ibid at 310. (Princeton: Princeton University Press, 2005) at 1 42 Charles Taylor, A Secular Age (Cambridge: Har- [Kahn]. vard University Press, 2007). 23 Bruker v Markovitz, [2007] 3 SCR 607, 2007 SCC 43 Ibid at 3. 54 (CanLII) at para 1. 44 Lawrence G Sager, “# e Moral Economy of Reli- 24 Kahn, supra note 22 at 1. gious Freedom” in Peter Cane, Carolyn Evans & 25 Charles Taylor, “# e Politics of Recognition” in Zoe Robinson, eds, Law and Religion in ! eoreti- Philosophical Arguments (Cambridge: Harvard cal and Historical Context (Cambridge: Cam- University Press, 1995) 225. bridge University Press, 2008) 16 at 18 [Sager]. 26 James Tully, Strange Multiplicity: Constitution- 45 Christopher L Eisgruber & Lawrence G Sager, alism in an Age of Diversity (Cambridge: Cam- Religious Freedom and the Constitution (Cam-

Constitutional Forum constitutionnel € bridge: Harvard University Press, 2007). For other arguments seeking to establish an ap- proach to religious freedom that does not depend upon a distinctive valuation of religion, see Brian Barry, Culture and Equality: An Egalitarian Cri- tique of Multiculturalism (Cambridge: Harvard University Press, 2001); Michael W McConnell, “! e Problem of Singling out Religion” (2000) 50 DePaul Law Review 1; Michael W. McConnell & Richard Posner, “An Economic Approach to Issues of Religious Freedom” (1989) 56 University of Chicago Law Review 1. 46 See also Martha C Nussbaum, Liberty of Con- science: In Defence of America ’s Tradition of Religious Equality (New York: Basic Books, 2008). Nussbaum similarly emphasizes a general ethic of equality, rather than a speci" c valuation of religion, that animates the U.S. protection of religious freedom. 47 Sager, supra note 44 at 34. 48 Jeremy Webber, “Understanding the Religion in Freedom of Religion” in Peter Cane, Carolyn Evans & Zoe Robinson, eds, Law and Religion in ! eoretical and Historical Context (Cambridge: Cambridge University Press, 2008) 26 at 27. See also Jeremy Webber, “! e Irreducibly Religious Content of Freedom of Religion” in Avigail Eisenberg, ed, Diversity and Equality: ! e Chang- ing Framework of Freedom in Canada (Vancou- ver: University of British Columbia Press, 2006). 49 Parekh, supra note 14 at 328.

€ Volume 19, Number 2, 2011 Judges and Religious-Based Reasoning

Diana Ginn* and David Blaikie**

Is it ever acceptable for a judge in a secular but only where the law is underdetermined; that liberal democracy 1 to rely on, and explicitly is, where the relevant constitutional principles, refer to, religious-based reasoning 2 in reach- legislation and case law do not resolve the issue, ing a decision? While it is unlikely that many and where substantial interpretation and devel- Canadian judges will be seized with the de- opment of the law is required in order to decide sire to include religious-based reasoning in the matter before the judge. We would add the their judgments, we raise this issue because further important proviso that the reasoning it allows us to examine the appropriate role must conform to the constitutional require- of religious-based discourse in a challenging ment that the state remain neutral as among context, where arguments about unconstitu- di erent religions and as between religion and tionality are strongest. In a previous article, non-religion. we concluded that there are no ethical imped- iments to citizens using such discourse in dis- We begin our discussion by outlining what cussing public a airs. We argued that it is no we mean by legal underdeterminacy, and then less virtuous (although it may sometimes be respond to various arguments against allowing less persuasive) to reason from one’s religious religious-based reasoning by judges, with a par- convictions than from any other compre- ticular focus on arguments relating to unfair- hensive set of values, when advocating for or ness and unconstitutionality. against public policy alternatives. 3 We would suggest that this is generally also the case for When is the law underdetermined? elected representatives. ‚ us, in our view, it would be perfectly acceptable for a member We start from the premise that where the law is of a legislature to buttress a call for increased clear, there is no room (or reason) for a judge to funding for social services by reference to turn to his comprehensive set of beliefs—reli- Proverbs 19:17: “ One who is gracious to a poor gious or not—to reach a conclusion. For exam- man lends to the Lord.” 4 However, it is uncon- ple, consider a situation where a statute states stitutional for a legislature to pass legislation that it is an o ence to drive faster than 110 km/ for a religious purpose 5; therefore, legislators hour. If the evidence makes it clear that the ac- must recognize the distinction between advo- cused did so, and there are no valid defences put cating legislation designed to achieve a reli- forward, the judge must ! nd the accused guilty; gious purpose and using religious arguments the law is settled and reaching the appropriate to support or oppose legislation designed to verdict requires no reference to extra-judicial achieve a public purpose. 6 fundamental beliefs. Consider another example. A First Nation in Canada makes a land claim ‚ e question we address here is whether it based on Aboriginal title. ‚ e Supreme Court of would be acceptable for a Canadian judge to Canada has set out a test, based on historic use use religious-based reasoning and, if so, what and occupation of the land, for determining the parameters might need to be placed on the use existence of Aboriginal title. While it may be of such reasoning. We conclude that the use of di" cult to decide whether the test has been met religious-based reasoning would be acceptable, in a particular situation, the test itself is clearly

Constitutional Forum constitutionnel € stated in the law. ! erefore, it is the test that any required making value judgments about how lower court must work with, and a judge can- the law could best serve the interests of society, not turn to her religion—or to any other com- as well as its individual members such as Ryan prehensive set of values—to cra" a new test for and his mother. determining the existence of Aboriginal title. Nor may judges use their religious—or other— ! e majority of the Court refused to extend beliefs to undermine the legal system they are established principles of tort law in order to al- part of. For instance, a judge could not refuse to low Ryan to sue his mother. ! eir decision was follow the rule of law because it did not conform based on public policy concerns regarding the with her religious beliefs. If the fundamental privacy and autonomy rights of women, and on principles of the legal system are incompatible the di# culties inherent in articulating a judi- with a judge’s core beliefs, then she should step cial standard of conduct for pregnant women. down. ! e two dissenting judges held that concerns about autonomy could not justify placing the Even within an established system of law, rights of a pregnant woman above that of her however, there will be times when the law is child. ! ey went on to say: “To grant a pregnant underdetermined. As an example, consider a woman immunity from the reasonably foresee- 1999 decision of the Supreme Court of Cana- able consequences of her acts for her born alive da, Dobson (Litigation Guardian of) v Dobson ,7 child would create a legal distortion as no other where the Court was called on to develop new plainti% carries such a one-sided burden, nor legal principles in order to resolve a di# cult and any defendant such an advantage.” 8 signi$ cant issue. In Dobson , the Supreme Court Dobson of Canada addressed the question of whether In , neither the majority nor the dis- a child could sue his mother for harms caused senting judgment referred to religious beliefs by the mother’s negligence during pregnancy. or values at all—but what if they had? What if Although previous case law dealt with related the judge writing for the majority had related issues, there was no Canadian jurisprudence di- the public policy argument about autonomy rectly on point. to a religious belief that God has created all of us, male and female, as equal and autonomous Mrs. Dobson, $ ve months pregnant, was beings, equally deserving of respect and dig- driving her car on a snowy winter day. Her car nity? What if the dissenting judges had based skidded; there was an accident and her son, their decision on a belief in God’s concern for Ryan, was born prematurely. Ryan has cerebral the vulnerable and the powerless? ! e outcome palsy; he is profoundly disabled and requires of the case would have been the same, but the lifetime care. Ryan sued his mother, alleging analysis would have been explicitly grounded in negligence. If Mrs. Dobson had been found religious belief and reasoning. Would express negligent, then her insurers would have had reliance on religious-based reasoning be ac- to make a substantial payment to Ryan. First, ceptable in a case such as this? however, the Supreme Court of Canada had to decide whether Mrs. Dobson was liable in law. Could Ryan sue his mother on the grounds that  e arguments against religious- her negligence during pregnancy caused him based judicial reasoning harm? ! e key arguments against the explicit use of re- ! e Supreme Court of Canada was in un- ligious-based reasoning by judges involve con- charted legal waters. ! is was the $ rst time that cerns about inherent dangers in religious-based the Court had been called upon to answer this reasoning; inconsistency with the role of the question and neither the Constitution, relevant judge in a democracy; unfairness to litigants; legislation, nor case law provided a clear-cut and threats to freedom of religion. We address answer. ! e Court had to decide which of the each of these, with a particular emphasis on competing public policy alternatives should fairness and freedom of religion. prevail, and choosing among those alternatives

€ Volume 19, Number 2, 2011 Inherent dangers in religious-based reasoning reason and analyze—and this is never more so than when the law is underdetermined and it e argument that religious-based reasoning is necessary to turn to extra-judicial values in is inherently more dangerous than other kinds order to choose between di# erent approaches of value-based reasoning seems to encompass to the issue in dispute. Even if it is acceptable three strands: that religious belief requires a for judges to make explicit reference to religion leap of faith and thus any reasoning based on when faced with a situation of underdetermi- religion is inherently more risky than reason- nacy, there is still the expectation that reason- ing based on a secular, rational approach; that ing is involved. us, we distinguish between a religious-based reasoning is inherently more judge moving directly from her understanding divisive than other kinds of argumentation; of divine will to the outcome (as in “God told and that religious-based reasoning is inherently me to decide for the plainti# ”) 12 and a judge, 9 more likely to lead to bad results. faced with underdeterminacy, using principles With regard to the " rst strand, we acknowl- derived from his religious beliefs as a starting 13 edge that religious belief involves a leap of faith. place for the analysis. A well-known exam- By “leap of faith” we mean accepting as true ple of the latter kind of reasoning is found in Donoghue v Stevenson 14 something that is not empirically provable. the landmark case of , Rejecting religious-based reasoning on this where the House of Lords was called on to set ground raises the larger epistemological ques- the parameters of liability in the newly-emerging tion of whether there are justi" able grounds for " eld of negligence. e existing law did not pro- saying that certain ways of knowing are supe- vide a clear answer, so Lord Atkin turned to the rior to others. 10 ere is also the more pragmatic Golden Rule, stating: point that the leap of faith argument simply does e rule that you are to love your neighbour not work as a means to distinguish religious becomes in law you must not injure your reasoning from secular reasoning. We take it as neighbour; and the lawyer’s question, Who given that most people’s conclusions about what is my neighbour? receives a restricted reply. is right or wrong, what is just, or what course of You must take reasonable care to avoid acts action is the better one, are grounded in some or omissions which you can reasonably fore- sort of comprehensive set of values—that is, by see would be likely to injure your neighbour. fundamental assumptions about the nature of Who, then, in law, is my neighbour? e an- reality, whether religious or secular. 11 We ar- swer seems to be —persons who are so closely gue that leaps of faith are required for any such and directly a# ected by my act that I ought fundamental assumptions and, therefore, this is reasonably to have them in contemplation as being so a# ected when I am directing my no di# erent for religion than for other compre- mind to the acts or omissions which are called hensive belief systems. For instance, it is a core in question. 15 premise of liberalism that all people are entitled to equal rights—presumably because at some A second danger sometimes attributed to religious- fundamental level, all human beings have equal based reasoning is that it is inherently disruptive. intrinsic value, unrelated to their social status, us, Richard Rorty claims, “[W]e shall not be wealth, character, accomplishments, contribu- able to keep a democratic community going tions to society or physical or mental attain- unless the religious believers remain willing to ments. ere is no way of empirically prov- trade privatization for a guarantee of religious ing this inherent equal value: a leap of faith is liberty.” 16 We addressed this argument in our required. previous article, 17 and so we need only canvas it brie$ y here. In short, our response is that re- Further, while we accept that religious belief ligious beliefs are no more divisive than many is grounded on a leap of faith, when we speak other strongly held convictions. To understand of judges using religious-based reasoning, our the absurdity of Rorty’s claim we need only emphasis is as much on “reasoning” as on “reli- substitute another comprehensive, but secular, gious.” Whatever fundamental principles form world view: “We shall not be able to keep a dem- the bedrock of a judge’s worldview, judges must

Constitutional Forum constitutionnel  ocratic community going unless libertarians are ties (including government) into deciding a case willing to trade privatization for a guarantee of in a particular way; to allow external pressure to freedom of conscience.” a! ect a decision would diminish independence. Judicial independence would certainly be com-  e ‚ nal strand of the argument that religious- promised if a judge could be dictated to by a based reasoning is inherently dangerous focuses religious organization or faith group. However, less on the reasoning process, or on the reactions allowing a judge to refer explicitly to religious of others to that reasoning, and more on the reasoning where the law is underdetermined outcomes that are assumed to follow from such does not automatically compromise judicial reasoning.  is fear seems to proceed from the independence. assumption that all individuals of faith hold similar views on social issues—an assumption Impartiality requires that a judge be neutral that is clearly untenable in light of the great as between the parties; that is, she cannot be diversity of religious beliefs—and that these predisposed to favour one party over the other. views are harmful to society. We reject the po- Certainly, this value would be undermined if a sition that reasoning based on religious beliefs judge, consciously or unconsciously, favoured is inherently more likely to lead to bad results litigants of a particular religion, or favoured than reasoning based, for instance, on conser- religious litigants generally over non-religious vatism, libertarianism, feminism, or some other litigants. Again, however, allowing for explicit secular philosophy. While we acknowledge “the reliance on religious reasoning where the law demonstrated, ubiquitous human propensity to itself does not o! er su" cient guidance does not be mistaken and even to deceive oneself about lead inevitably to such favouritism.  ere seems what God has revealed,” 18 we are convinced that no more reason to assume that judges would humans are equally capable of using secular allow themselves to be biased on the basis of reasons to delude themselves into doing terrible religion than on the basis of culture, ethnicity, things in the name of a greater good.  us, as gender, or class.  erefore, the dual response to “so much of the twentieth century attests, … concerns about bias should be the same for each one need not be a religious believer to adhere to of these examples: a requirement that judges be one’s fundamental belief with closed-minded or self-aware and alive to the possibilities of bias, even fanatical tenacity.” 19 however unintended; and a concerted e! ort to appoint a diverse judiciary.  e role of judges in a democracy  e rule of law is shorthand for a number Would express use of religious-based reason- of concepts limiting the arbitrary power of the ing by judges where the law is underdetermined state.  e most famous expression is that of erode the role of judges in a democracy? Demo- Dicey, who described the rule of law as requir- cratic values require that a judge be “principled, ing the following: independent and impartial” 20 and have a strong respect for the rule of law. 1. the supremacy of regular law as opposed to the in# uence of arbitrary power, ex- In the context of judging, we take “princi- cluding the existence of arbitrariness, pled” to mean following and applying accepted prerogative, or even of wide discretionary legal norms, and deciding on the evidence and authority on the part of the government; argument before the court, rather than deciding 2. equality before the law, excluding the on a whim or out of expediency or self-interest. idea of any exemption of o" cials or oth-  ere is no reason to assume that reasons ground- ers from the duty of obedience to the law ed in religious belief would be any less princi- which governs other citizens; pled than reasons grounded in any other set of comprehensive values. 3. the law of the constitution is not the source but the consequences of the rights Independence demands that judges not al- of individuals as de‚ ned and enforced by low themselves to be pressured by outside enti- the courts. 21

€ Volume 19, Number 2, 2011 Judicial use of religious-based reasoning where Would express reliance on religious-based the law is underdetermined would not neces- reasoning where the law is underdetermined sarily increase the arbitrary powers of the state, be unfair because it would require appellants, reduce the obligation of public o cials to obey or future litigants in similar cases, to make the law, or leave individual rights more vulner- religious-based arguments even if they did not able to state encroachment. wish to? It has been argued that “subsequent litigants in analogous hard cases would have to A more modern description of the rule of challenge both the court’s comprehensive con- law is as follows: viction about authentic human existence and its 24 ‚ e rule of law presupposes that laws will usu- analysis of legal principles in order to prevail.” ally be obeyed, that breaches of the law will Arguably, however, by referring to his religious usually meet with enforcement, that govern- beliefs a judge is simply explaining why he chose ment will be limited in its powers, and that one approach over another in a context where courts and the legal profession will be inde- the relevant constitutional principles, legisla- pendent of government and of powerful pri- tion and case law did not provide a clear guide. vate interests. 22 ‚ ose religious beliefs do not, by virtue of hav- ing been referenced in the decision, now be- Generally, none of these principles would be come part of the law. If the losing party wished diminished if a judge employed religious-based to appeal, she would argue that the lower court reasoning in the context of legal underdeter- decision was wrong in law, but would not need minacy; in particular, such reasoning would to rebut the lower court judge’s “comprehensive not make courts more susceptible to pressure conviction about authentic human existence.” from government or private interests. One con- cern might be that individuals opposed to the ‚ is distinction can be seen if we turn again particular religious beliefs relied upon, or to to the issues litigated in the Dobson case. Let all religious beliefs, might then view the law as us assume that a lower court judge had found less legitimate and so be less inclined to obey against Ryan Dobson because of concern for it. While not dismissing this argument out of the autonomy of pregnant women. ‚ ere are hand, we would suggest that the same concern enough statements in the law regarding au- could arise whenever citizens are unhappy with tonomy of the person for the judge to conclude the value system underlying a particular judicial reasonably that this is a core principle of the approach; in other words, this is not a concern legal system; however, she would still have to limited to religious-based judicial reasoning. decide how to balance the mother’s autonomy against the harm done to the child, and at the Unfairness time Dobson was decided, the law had not yet struck that balance. In deciding that concerns Leaving aside questions of constitutional- for the mother’s autonomy outweighed other ity, which are discussed below, is it unfair to arguments, the judge might refer explicitly to litigants if a judge makes explicit reference to her belief that God created men and women religious-based reasoning, particularly if rely- equal. Since individual autonomy is a core value ing on a religious tradition not shared by the of Canada’s legal system, on appeal Ryan Dob- litigant? Some would argue that religious-based son would have had to argue that women’s au- reasoning is unfair because it is inaccessible tonomy would not be undermined by allowing to those of another religion, or of no religion. a child in his situation to sue, or that autono- We canvassed these arguments in our previous my for the pregnant woman is outweighed by article; 23 brie! y, we suggest that characterizing other equally core values. He would not have to religious reasoning as inaccessible confuses ac- persuade the appeal court that the lower court cessibility with persuasiveness. It is perfectly judge was wrong in her conviction that God possible to understand a public policy argument created men and women equal. derived from fundamental beliefs which we do Perhaps the unfairness stems not from con- not share—we just may not be persuaded by it. cerns about religious-based reasoning becom ing

Constitutional Forum constitutionnel € part of the law, but from the fact that the law Dobson is a good example: the reasoning can coerce the individual, and that a coercive of both the majority decision and the dissent, outcome is illegitimate if it is reached through although secular, would be hotly contested by reasoning from values that the individual does some Canadians. ! ere could be signi$ cant not share. ! us, it has been suggested that “it is dispute as to how to weigh and prioritize the fundamentally unfair to coerce people, or to use competing claims of autonomy versus allowing the corporate authority and power of the state, those who have been harmed by negligence to when the grounds for doing so are not ones that demand compensation. ! us, we would argue those a" ected could be expected to accept if that e" orts to $ nd public reasons—that is, rea- they made reasonable judgments.” 25 sons that will be widely “endorse[d] as su# cient to the purpose”—are not likely to be successful, ! e idea that state action should be founded once one moves beyond broad generalities. 28 on grounds that all reasonable people would ac- If that is so, then it seems that fairness, in the cept calls to mind Robert Audi’s stricture that, context of judging, must mean something other in public debate, virtuous citizens should “seek than a requirement that judges who are decid- grounds of a kind that any rational adult citi- ing novel issues of law $ nd grounds for their de- zen can endorse as su# cient to the purpose.” 26 cisions that will, in fact , be seen as reasonable by ! is requirement would suggest that public rea- 29 son is, at a minimum, reasoning that is likely everyone, including the losing party. to be seen as persuasive or at least reasonable Unconstitutionality by a broad range of individuals. But is Professor Audi’s approach helpful when applied to judges, Even if our arguments about fairness are ac- particularly in a situation of legal underdeter- cepted, it is still necessary to explore whether minacy? ! e very fact that the law is under- reliance by judges on religious-based reasoning determined suggests that the issue before the when the law is underdetermined would violate courts is a di# cult and complex one, involving section 2(a) of the Canadian Charter of Rights competing public policy arguments; certainly and Freedoms, which states: this was so in the Dobson case. ! is complex- ity in itself lessens the likelihood of $ nding one Everyone has the following fundamental perspective that is widely accepted. Further, freedoms: even if wide agreement could be found on an (a) freedom of conscience and religion. 30 important social issue where the law is still un- settled, this agreement is likely to be at the level In other words, even if we cannot hold judges to of general principles that may not give much as- the standard suggested by Audi for virtuous cit- sistance in real-life decision making. According izens (by demanding that the basis for their de- to Greenawalt, certain statements such as “hap- cisions be acceptable to all rational individuals), piness is better than pain” seem so widely ac- do constitutional di# culties arise if the coer- cepted that someone who rejected them “would cive power of the state is grounded on reasoning 27 seem not to be of sound mind.” ! is may be based on religious faith rather than on a secular so, but, in any real-life clash of interests—which set of comprehensive values? Is it constitutional is, a% er all, what court cases are about—a judge for a feminist judge to draw upon his feminism is going to have to consider more pointed ques- in deciding a new legal issue (even if the losing tions: In whom do we create happiness? And litigant is profoundly opposed to all feminist how? And at what expense to others? What if principles) but unconstitutional, because of the doing right entails pain? What if all the op- protection given in section 2(a) of the Charter , tions available will cause pain or loss to some for a religious judge to draw upon her faith in individual or group and the di# cult question 31 is how to allocate that pain? Once a judge is re- deciding an equally novel issue? quired to answer these more pointed questions, Distilling the case law and academic com- it seems inevitable that the reasons for her deci- mentary, freedom of religion in Canada in- sion will be persuasive to some, but completely cludes both a positive aspect (“freedom for re- unpersuasive to others. ligion”) and a negative aspect (“freedom from

€ Volume 19, Number 2, 2011 religion”). 32 ! e positive aspect of freedom of pregnant women for secular reasons or for re- religion, that is, the right to worship and live out ligious reasons. Similarly, a judge could place one’s religion as one wishes, so long as this does signi" cant weight on protecting the unborn for not harm another’s rights, has been described secular reasons or for religious reasons. Which- by the Supreme Court of Canada as including ever the outcome, would the judge have acted “the right to entertain such religious beliefs as constitutionally where secular reasoning was a person chooses, the right to declare religious used but unconstitutionally where religious- beliefs openly and without fear of hindrance or based reasoning was used? By using his reli- reprisal, and the right to manifest religious be- gious faith as a starting place from which to lief by worship and practice or by teaching and work through the weighing of competing prin- dissemination” 33 and the right not to have one’s 34 ciples in a particular factual context, would the “profoundly personal beliefs” interfered with. judge have failed the requirement to be neutral Would the positive aspect of section 2(a) of the among religions or between religion and non- Charter —freedom for religion—be infringed if religion? It is hard to see how the requirement the judges in the Dobson case reasoned from a of neutrality would have been breached. ! e religious basis in deciding whether a child could sue its mother for harm caused by the mother’s state would not have set one religion above negligence during pregnancy? Religious-based another, nor would it have privileged religion reasoning would not have interfered with the above atheism or agnosticism. Nor would the litigants’ “profoundly personal beliefs” or un- state be acting for a religious purpose. dermined their right to manifest those beliefs. ! e issues may become somewhat more nu- ! e negative aspect of section 2(a), “freedom anced, however, if religious belief plays some from religion,” protects individuals from direct part in the dispute itself or if the case involves and indirect coercion. 35 ! is aspect of freedom issues on which at least some religions have spe- of religion has been interpreted broadly, and ci" c teachings. Consider the case of Brockie v it requires the state to be neutral among reli- Brillinger ,37 which involved both these aspects. gions and between religion and non-religion. Mr. Brockie, the owner of a printing company, More speci" cally, it is unconstitutional for the refused to print letterhead and other materials state to act for a religious purpose, as the Su- for the Canadian Lesbian and Gay Archives, an preme Court of Canada made clear by striking organization committed to enhancing the posi- down legislation intended to enforce a Sunday tion of gays and lesbians in society by provid- Sabbath. 36 ing “public access to information, records and artifacts, by and about lesbians and gay men in Where the law is underdetermined, if a Canada.” 3 Mr. Brillinger, the president of the judge places some reliance on her religious beliefs in choosing between available options, Archives, brought a complaint under the On- Human Rights Code 39 does that create a form of unconstitutional co- tario of discrimination on ercion for the losing litigant who does not share the basis of sexual orientation. At the hearing, those religious beliefs? Or, taking this further, Mr. Brockie stated that he had no objection to does it undermine the freedom of religion of serving gay or lesbian individuals but that his citizens more generally—those citizens who do religious beliefs prevented him from printing not share the judge’s religious views, yet will material for an organization that advocated for be a# ected by the development in the law? We gay and lesbian rights. ! e adjudicator upheld see this as potentially the strongest argument the complaint and required Mr. Brockie to print against religious-based reasoning, and we take the material and to pay $5,000 in damages. seriously the need to ensure that judicial rea- soning does not fall short of the requirement for Assume that this decision was appealed to neutrality both among religions and between the court; the judge hearing the matter would religion and non-religion. be faced with the di% cult matter of balancing two con& icting rights-based claims: Mr. Brill- Returning again to Dobson , a judge could inger claimed that he was being discriminated place signi" cant weight on the autonomy of against on the basis of sexual orientation and

Constitutional Forum constitutionnel € Mr. Brockie claimed that any attempt by the is refused, I will also give serious consideration state to force him to act against his religious to the harm caused by forcing an individual to principles would violate his freedom of religion. act in opposition to their religious convictions.” ! e current law in Canada provides very little On the other hand, a judge might decide for Mr. guidance as to how these kinds of competing Brockie on the basis that “! e Bible prohibits rights claims should be resolved. What if the homosexuality and so claims based on sexual judge canvassed all relevant constitutional prin- orientation must always be subordinated to oth- ciples, legislation and case law, but none proved er claims.” conclusive as to which right should trump the other? In deciding which of the rival claims to Arguably, the second approach in each pair privilege, it is quite likely that a judge would is problematic in that it suggests the automatic have to turn (as presumably the adjudicator did, privileging of one kind of claim over another. although not explicitly 40 ) to an extra-judicial Such an approach fails to re$ ect the fact that set of values. Would the constitutionality of the the law in Canada protects both sexual orienta- judge’s reasoning depend on whether those val- tion and religious freedom, and it comes peril- ues were religious in nature? ously close to deciding a case based on who the parties are rather than on an analysis of the is- One could imagine a judge deciding either sues at stake. Rather than using one’s religious way, based on secular grounds: “Creating a just convictions as a lens through which to evaluate society requires that close attention be paid to competing legal principles, a certain religious the need to uphold the dignity of all individuals, belief is substituted for legal analysis. 41 Further, particularly those, like gays and lesbians, who at least one of these formulations—“! e Bible have historically faced oppression and exclu- prohibits homosexuality and so claims based on sion”; or “A liberal democratic state requires a sexual orientation must always be subordinated healthy dose of self-restraint on the part of gov- to other claims”—con$ icts with the constitu- ernment and courts; therefore, courts should be tional requirement of neutrality because it fa- very wary of forcing individuals to act against vours one religious doctrine over other possible their core beliefs.” interpretations of the Bible and over religious teachings from other faiths. Or, to state it dif- It is also possible to imagine a judge decid- ferently, the judge could be seen as acting for a ing either way using religious-based reasoning. religious purpose; that is, deciding in a particu- Here, however, it may be useful to consider di" erent lar way so as to implement a particular religious religious-based formulations and re-emphasize the rule. requirement that legal reasoning of any sort involve actual reasoning rather than simply the stating of conclusions. In deciding for Mr. Brillinger, Conclusion a judge might start his analysis from the posi- tion that “All individuals are part of God’s cre- In this article, we have argued that, within cer- ation and, therefore, in weighing these claims tain parameters, it is acceptable for a judge in a before me, signi# cant weight must be given to secular liberal democracy to include religious- safeguarding the dignity of each individual.” based reasoning in a judgment. Perhaps a pri- Another judge might state: “God particularly or question is whether it is even possible for a loves the dispossessed, so the claims of gays and religious person to set aside his or her beliefs lesbians must always take priority over freedom when making certain sorts of decisions. We of religion claims.” In deciding for Mr. Brock- are of the view that, on issues of any signi# - ie, one step in the judge’s reasoning might be cance, no one can “bracket” their most funda- as follows: “As a believer myself, I understand mental beliefs (whether those are of a religious that Mr. Brockie cannot simply set aside his nature or based on a secular set of core values) when having to choose between two or more religious beliefs while operating in the work- 42 a-day world. So, while giving serious weight to available outcomes. ! is would suggest that the harm done to Mr. Brillinger if his business where the law is underdetermined, religious judges will inevitably be in$ uenced by their

€ Volume 19, Number 2, 2011 religious beliefs, just as liberal judges will be to extra-judicial comprehensive values when in! uenced by their liberalism, humanist judg- the law is underdetermined, and must engage es in! uenced by their humanist philosophy, in actual analysis and reasoning. " e losing and so on. Some authors, such as Mark Mo- litigant’s rights “to manifest religious belief by dak-Truran, acknowledge “the necessary reli- worship and practice or by teaching and dis- ance on religious convictions” where the law semination,” 44 and “not to be compelled to be- is underdetermined, 43 but argue that this reli- long to a particular religion or to act in a man- ance should not be made explicit. We would ner contrary to one’s religious beliefs,” 45 would argue in favour of transparency. not be eroded simply because the judge rea- soned from a faith-based worldview. Nor does While religious-based reasoning is not in- using such a worldview as the starting place for herently dangerous or problematic, the use of judicial analysis necessarily depart from the re- such reasoning by judges does raise questions quirement of state neutrality regarding religion about the role of judges, fairness, and constitu- and thus result in unconstitutional coercion. tionality, which must be taken seriously. We do recognize, however, that certain kinds of religious reasoning could indeed fall short of We conclude that reference to comprehen- the constitutional requirement that the state re- sive values, including religious values, would main neutral among di# erent religions and be- not undermine the proper role of the judiciary, tween religion and non-religion. If a judge used so long as this reference is limited to situations her religious convictions to always side with re- where the law truly is underdetermined, and so ligious litigants over non-religious litigants, or long as there is actual reasoning, not simply a to side with litigants of a particular faith, this Charter jump from a religious premise to a conclusion. would violate section 2(a) of the (as well In our view, if these conditions are met, there as violating more generally the judge’s duty of is nothing in religious-based judicial reasoning impartiality, not to mention failing to live up that inherently con! icts with the requirement to the expectation that judicial reasoning in- that judges be principled, independent and im- volves actual reasoning). Further, a judge who decided in a certain way so as to uphold a par- partial and have a strong respect for the rule of ticular tenet of his faith would violate litigants’ law. freedom of religion. If judges are alert to these So long as the same limits are observed, potential pitfalls, however, we would argue that such reasoning is not, in our view, unfair. We there is no constitutional breach if a judge relies reject the notion that there exists some form on religious-based reasoning when faced with of “public reason” that would be acceptable to a novel question of law to which constitution- all reasonable individuals. " us we consider it al principles, legislation and relevant case law provide no answer. In such a situation, a judge unrealistic to suggest that fairness requires ju- must inevitably turn to some set of comprehen- dicial decisions to be grounded in reasons that sive values as a starting place for his analysis of would be considered satisfactory by all, includ- competing public policy arguments and, if the ing the losing litigants. Where the underde- restrictions set out above are adhered to, it is termined nature of the legal issue at stake re- no more inherently dangerous or problematic quires judges to turn to extra-judicial values as if those values arise from religious rather than a starting place for their analysis, it is no more secular convictions. unfair to the litigant who does not share the judge’s worldview if that analytic framework is based on religious grounds than if it is based on Notes a secular philosophy such as libertarianism or * Associate Professor, Schulich School of Law, communitarianism. Dalhousie University ** Assistant Professor, Schulich School of Law, Dal- We also conclude that section 2(a) of the Char- ter housie University is not automatically violated by religious-based We would like to thank Adam Bata, LL.B 2012 judicial reasoning, assuming the parameters set (prospective), for his able research and editorial out above are observed: the judge may only turn assistance.

Constitutional Forum constitutionnel € 1 We accept Kent Greenawalt’s description of if Riley’s plan gave preferential treatment to a liberal democracy as having the following Christians; but the mere fact that a public o% cial and ordinary citizens choose to characteristics: “democratic governance, equality interpret a legitimate government objective of citizens, freedom of expression and religious in light of their private religious convictions exercise, respect for the dignity and autonomy has no bearing on its political status. Nor of all people, and the rule of law.” Kent Green- did Riley’s religious motives in introducing awalt, Private Consciences and Public Reasons the tax plan undercut its legitimacy. So long as the policy objective is within the scope of (New York: Oxford University Press, 1995) at 21 the state’s authority, its sponsors’ motives are [Greenawalt]. irrelevant.… 2 For a de! nition of religious-based reasoning, [W]hat is truly key is that public policies we ! nd Jonathan Chaplin’s discussion helpful, serve a legitimate civil interest and do not although he is referring to arguments made by aim at securing a spiritual bene! t…. [I]f it is citizens and legislators, rather than judges: “" e conceded that the ends of a proposed policy term ‘religiously-based arguments’ refers to are legitimate, what does it matter that the reasons given in support of the policy are political [we would add ‘legal’] arguments whose private rather than public in Rawls’s sense? grounding in religious beliefs is made clear in advancing them. I am not referring therefore Stephen L Newman, “God, Taxes and ‘Public to arguments about religion , but to arguments Reason’” (Winter 2004) 51 Dissent 64, online: about politics and law , rooted in some religious Dissent Magazine at 65–66. Chaplin, “Beyond Liberal Restraint: Defending 7 1999 CanLII 698 (SCC), [1999] 2 SCR 753 Religiously-Based Arguments in Law and Public [Dobson ]. Policy” (2000) 33 University of British Columbia 8 Ibid at para 130. Law Review 617 at 620 [Chaplin]. 9 For further discussion of this argument, al- 3 David Blaikie & Diana Ginn, “Religious Dis- though not in the context of judging, see Blaikie course in the Public Square” (2006) 15 Consti- & Ginn, supra note 3. tutional Forum constitutionnel 37 [Blaikie & 10 For a critique of the characterization of reli- Ginn]. For further discussion of these issues in gious claims as irrational, see Francis J Beck- the Canadian context, see Chaplin, supra note 2; with, “Must " eology Always Sit in the Back of for American writing on the subject, see, among the Secular Bus?: the Federal Courts’ View of others: John Rawls, Political Liberalism (New Religion and Its Status as Knowledge” (2009) 24 York: Columbia University Press, 2005); Robert Journal of Law & Religion 547. For an opposing Audi & Nicholas Wolterstor# , Religion in the view, see Suzanna Sherry, “" e Sleep of Reason” Public Square: ! e Place of Religious Convictions (1996) 84 Georgetown Law Journal 453. in Public Debate (Lanham, MD: Rowman & 11 Support for this position can be found in the Little! eld, 1997); and Stephen L. Carter, ! e Cul- “cultural cognition” theory developed by Dan M ture of Disbelief: How American Law and Politics Kahan and Donald Bramar (“Cultural Cognition Trivialize Religious Devotion (Toronto: Random and Public Policy” (2006) 24 Yale Law & Policy House, 1994) [Carter]. Review 149). Based on their research, Kahan 4 New American Standard Bible (Chicago: Moody, and Bramar conclude that individuals’ views on 1995). issues of public policy are in* uenced by (and can 5 R v Big M Drug Mart Ltd , 1985 CanLII 69 (SCC), be predicted by reference to) their world view; [1985] 1 SCR 295 [ Big M ]. that is, each individual holds a particular world- 6 Stephen L Newman describes tax reform initi- view and it is that worldview that causes a person ated by a conservative Republican governor. " e to accept or reject competing claims about the reform (which, had it passed, would have shi$ ed risk or e% cacy of public policy proposals. " us, some of the tax burden from the poor to rich) according to Kahan and Bramar: “culture is prior was based on Governor Riley’s belief that oppres- to facts in the cognitive sense that what citizens sive taxing of the poor was unchristian. Newman believe about the empirical consequences of … argues that: policies derives from their cultural worldviews” It in no way diminishes the public character (at 150). Building on the work of others, Kahan of the state’s ! scal policy that Riley and and Bramar classi! ed their research subjects’ conceivably a signi! cant portion of Alabama worldviews as falling along two dimensions —in- voters viewed his tax plan as a practical dividualistic versus communitarian and hierar- expression of the biblical injunction to succor the poor. It would be a di# erent story chic versus egalitarian (at 157).

€ Volume 19, Number 2, 2011 12 As Wendell L Gri! en, a judge and Baptist pastor of Judicial Decision Making and the De Facto who supports the use of religious-based reason- Disestablishment” (1998) 81 Marquette Law ing by judges, notes in “" e Case for Religious Review 255 at 285 [Modak-Truran]. Values in Judicial Decision-Making” (1998) 81 25 Greenawalt, supra note 1 at 72. Note that Green- Marquette Law Review 513 at 520 [Gri! en]: “" e awalt does not take this position, but simply devout judge who relies on religious conviction raises it. as the sole basis for judicial decision-making is 26 Robert Audi, “" e State, the Church, and the acting as a prelate, not as a jurist.” Citizen” in Paul J Weithman, ed, Religion and 13 Jonathan Chaplin, supra note 2, seems to be Contemporary Liberalism (Notre Dame, Ind: making somewhat the same distinction when he University of Notre Dame Press, 1997) 38 at 48. distinguishes between what he calls “confessional 27 Greenawalt, supra note 1 at 27. discourse” and “political discourse,” de# ning the 28 Further, such e! orts may also cause us to forget former as discourse that “proclaims or argues for that even the most widely held views can be (religious or secular) doctrines” and the latter tragically wrong. If the goal of judging is to seek as “addressed to the speci# c content of law and the best, the most just solution from among those public policy” (at 642). According to Chaplin, legally available—rather than simply the most judges have a “constitutional duty … to adopt an popular —then perhaps we need to avoid privi- impartial attitude to di! erent confessional view- leging widely held views over more contentious points. " is does not mean, however, that judges approaches. A% er all, in various times and places, may not be materially led towards a particular the inferiority of women and the legitimacy of legal interpretation by confessional consider- slavery have been widely accepted. ations (whether ‘religious’ or ’secular’), but that 29 If the test is only that those a! ected should their public reasoning must always be su$ ciently (if they made reasonable judgments) # nd the justi# able by appeal to matters of fact and law” grounds acceptable, this does not seem to get us (at 643). He then gives an example based on a very far. A% er all, who is going to decide on the particular secular worldview: “a judge who was reasonableness of the individual’s judgments ‘confessionally’ committed to secular libertari- (unless we accept the shaky proposition that anism should not allow controversial assertions reasonable means accepted by the majority)? about the absolute moral autonomy of individual 30 Canadian Charter of Rights and Freedoms , Part I human beings to intrude into her decisions, but of the Constitution Act, 1982 , being Schedule B to rather con# ne herself to arguments soundly the Canada Act 1982 (UK), 1982, c 11, s 2(a). rooted in law and legal principle” (at 644). 31 Gri! en, supra note 12 at 514 suggests that many 14 1932 SC (HL) 31, [1932] AC 562 (BAILII). “hold the notion that religious values are some- 15 Ibid at 580. how more o! ensive to the way that judges decide 16 Richard Rorty, Philosophy and Social Hope (New than economic values, social values, political York: Penguin, 1999) at 170. ideology, or other secular values that in* uence 17 Blaikie & Ginn, supra note 3. See also Chaplin, the way that judicial decisions are reached.” supra note 2. 32 Congrégation des témoins de Jéhovah de St-Jé- 18 Michael J Perry, Religion in Politics: Constitu- rôme-Lafontaine v Lafontaine (Village) , 2004 tional and Moral Perspectives (New York: Oxford SCC 48, [2004] 2 SCR 650 (CanLII) [ Témoins de University Press, 1997) at 75. Jéhovah ]. See also David M Brown, “Freedom 19 Michael J Perry, Under God?: Religious Faith from or Freedom for?: Religion as a Case Study in and Liberal Democracy (Cambridge: Cambridge De# ning the Content of Charter Rights” (2000) University Press, 2003) at 42. 33 University of British Columbia Law Review 20 Rosalie Silberman Abella, “" e Judicial Role in a 551. Democratic State” (2001) 26 Queen’s Law Journal 33 Big M , supra note 5 at para 94. 573 at 580. 34 R v Edwards Books and Art Ltd , 1986 CanLII 12 21 AV Dicey, Introduction to the Study of the Law (SCC), [1986] 2 SCR 713 at para 97. of the Constitution , 10th ed (London: MacMillan, 35 Big M , supra note 5 at paras 94–95. 1959) at 202–3. 36 Ibid. 22 Peter W Hogg & Cara F Zwibel, “" e Rule of 37 Brockie v Brillinger (No 2) (1999), 37 CHRR D/12 Law in the Supreme Court of Canada” (2005) 55 (Ont Bd Inq). University of Toronto Law Journal 715 at 716. 38 Ibid at para 4. 23 Blaikie & Ginn, supra note 3. 39 Human Rights Code , RSO 1990, c H19. 24 Mark Modak-Truran, “" e Religious Dimension 40 " e adjudicator referred to community stan-

Constitutional Forum constitutionnel € dards—i.e., the fact that Canadian society provides protection against discrimination based on sexual orientation —thus justifying her decision on ostensibly objective standards. Yet, as Iain Benson and Brad Miller point out in their analysis of the case (“ e Diminution of Freedom of Religion” LexView (2000) 38, online: Cardus Centre for Cultural Renewal ):  e adjudicator must inevitably rank or prioritize rights which appear to be in con! ict.  is prioritization is not a judgement which is simply handed to the adjudicator as “publicly-arrived-at community standards embodied in the Code ,” but can only be the result of the adjudicator’s moral reasoning, however rigorous or de" cient it might be.  e bare fact that “Canadian society” has “seen " t … to protect the rights of its lesbian and gay members” is no more determinative of this dispute than the bare fact that “Canadian society” has also seen " t to protect the religious convictions of its members; the rights claims con! ict and the adjudicator must inevitably reason about the limits and relative importance of each. 41 Presumably too, an automatic privileging or subordinating of certain claims would be equally ! awed if it proceeded from a secular basis. See, e.g., Jonathan Chaplin’s comments in note 13, supra . 42 Gri# en, supra note 12 at 514, argues that de- manding such bracketing “dehumanizes re- ligiously devout judges by requiring them to either abandon the role of religious faith in their concept of moral knowledge or falsely mask the operation of that faith in the deliberative pro- cess”. See also Carter, supra note 3 at 213–32. 43 Modak-Truran, supra note 24 at 284. 44 Big M , supra note 5 at para 94. 45 Témoins de Jéhovah , supra note 32 at para 65.

€ Volume 19, Number 2, 2011  e Politics of Hate Speech: A Case Comment on Warman v Lemire

Ranjan K. Agarwal*

In September 2009, the Canadian Human Background Rights Tribunal waded into a highly public and acrimonious debate about the role of human Richard Warman " led a complaint with the rights tribunals and commissions, especially in Canadian Human Rights Commission alleging policing hate speech. In Warman v Lemire ,1 the that Marc Lemire communicated hate messages Tribunal held that section 13(1) of the Canadian over the Internet in breach of section 13 of the Human Rights Act 2 ( CHRA ), which prohibits the CHRA . Warman is an Ottawa-based lawyer and communication of hate messages, infringed the a former employee of the Commission. He has constitutional guarantee of freedom of expres- " led eleven other complaints against individ- sion, section 2(b) of the Charter of Rights and uals and groups he accuses of communicating Freedoms .3 ! e decision added to a " restorm hate in breach of section 13, all but two of which of media, political and academic debate about have resulted in a " nding of discrimination by whether anti-discrimination statutes should the Canadian Human Rights Tribunal. 5 Marc prohibit hate speech. ! e Warman decision Lemire is the former leader of the Heritage is complicated by a twenty-year-old Supreme Front, a white supremacist organization. 6 Court ruling, in a 4–3 decision, that a predeces- Warman alleged that Lemire is the owner sor provision in the CHRA is constitutional. 4 and webmaster of Freedomsite.org, and that In this article, I argue that the Tribunal’s comments posted on Freedomsite’s message decision is logically unsound and likely the re- board were hate messages. 7 At the Tribunal sult of ends-based or teleological reasoning. In hearing, Warman and the Commission ex- my view, ends-based reasoning does not assist panded the complaint to allege that: (a) Lemire in Charter analysis as it produces decisions that was also the registered owner of JRBookson- call into question the legitimacy of the courts. line.com, and hate messages had been posted on ! is article " rst outlines the facts in Warman JRBooksonline’s message board; and (b) Lemire and the Tribunal’s holding on the constitutional posted hate messages on Stormfront.org’s mes- issues. It goes on to survey the legal and con- sage board. 8 stitutional background to the Warman deci- sion and discuss the Taylor precedent. It then Lemire admitted to being the webmaster describes the Tribunal’s reasoning on constitu- and owner of Freedomsite.org. In 2006, the Tri- tional issues, including the Taylor decision and bunal found that Craig Harrison had posted CHRA Taylor messages to the Freedomsite message board amendments to the a# er . Finally, 9 it criticizes the Tribunal’s ends-based reasoning that were in breach of section 13. A number of and argues that this type of reasoning is illegiti- other people, including Lemire, posted messa- mate in constitutional decision-making. ges on Freedomsite.org that Warman and the Commission argued were discriminatory. ! ere were also a number of anonymous articles post- ed on Freedomsite.org. Warman alleged that

Constitutional Forum constitutionnel € Lemire posted hate messages on Freedomsite. ! e Tribunal dismissed Lemire’s section org, that Lemire and Harrison were working in 2(a) claim, saying that there was no evidence concert in respect of Harrison’s postings, and that Lemire or anybody else made postings as that Lemire incited Harrison and others to dis- a matter of conscience or their religious prac- criminate by setting up Freedomsite.org. ! e tice. 15 ! e Tribunal similarly dismissed Lemire’s Commission supported these arguments and section 7 claim on the basis that there was no also argued that Lemire was liable in his cap- evidence of his life, liberty or security being acity as website administrator for Freedomsite. infringed. 16 org, or vicariously liable for Harrison’s conduct. Warman and the Commission made similar al- legations about content posted on the JRBook- Statutory and constitutional sonline.com website, though Lemire denied be- framework 17 ing its owner or webmaster, and there was no CHRA evidence that Lemire posted messages or con- Section 13 of the prohibits the commu- tent to the website. In respect of Stormfront.org, nication of messages that are likely to expose a Warman alleged that Lemire posted a poem on person to hatred or contempt on the basis of a the website that was in" ammatory and deroga- prohibited ground of discrimination, either by tory towards non-white immigrants, and cre- telephone or by the Internet: ated a tone of hatred and contempt towards that 13. (1) It is a discriminatory practice for a per- class of persons. 10 son or a group of persons acting in concert to communicate telephonically or to cause to be Lemire defended these allegations on the so communicated, repeatedly, in whole or in basis that he was not the owner or webmaster part by means of the facilities of a telecommu- of JRBooksonline.com; that he cannot be liable nication undertaking within the legislative au- for other persons’ postings on Freedomsite.org; thority of Parliament, any matter that is likely and that his postings on Freedomsite.org and to expose a person or persons to hatred or con- Stormfront.org are not hate messages. Lemire tempt by reason of the fact that that person or also argued that sections 13, 54(1) and 54(1.1) of those persons are identi# able on the basis of a the CHRA violated his rights under section 2(a), prohibited ground of discrimination. 2(b) and 7 of the Charter and his rights under (2) For greater certainty, subsection (1) applies Canadian Bill of Rights 11 the , though he did not in respect of a matter that is communicated 12 make any submissions on the latter issue. by means of a computer or a group of inter- connected or related computers, including the On the merits, the Tribunal found that Le- CHRA Internet, or any similar means of communica- mire had breached section 13 of the with tion, but does not apply in respect of a mat- his poem on the Stormfront.org website and the ter that is communicated in whole or in part anonymous postings on the Freedomsite.org by means of the facilities of a broadcasting website, which only he could have posted as he undertaking. was the website’s webmaster. 13 (3) For the purposes of this section, no owner On the freedom of expression issue, the or operator of a telecommunication undertak- Commission and the Attorney General of ing communicates or causes to be communi- Canada conceded that section 13 of the CHRA cated any matter described in subsection (1) by breached section 2(b) of the Charter . In consid- reason only that the facilities of a telecommu- ering whether section 13 minimally impaired nication undertaking owned or operated by freedom of expression, the Tribunal held that that person are used by other persons for the transmission of that matter. 18 recent amendments to section 13 removed the “remedial, preventative and conciliatory” na- Section 13(2) of the CHRA was amended in De- ture of the provision. 14 As such, the Tribunal cember 2001 as part of the Anti-terrorism Act .19 held that section 13 cannot be justi# ed as a rea- ! e new section 13(2) was linked to the “war sonable limit on the section 2(b) right. on terrorism” by the federal government in two

 Volume 19, Number 2, 2011 ways: prohibitions on hate speech would both In R v Oakes ,27 the Supreme Court established reduce the risk of terrorism and protect ethnic the legal test for determining whether a law that and religious minorities from persecution in breaches a Charter freedom or right may be the event of a terrorist attack. 20 limited pursuant to section 1: Sections 54(1) and (1.1) provide for rem- (a) Pressing and substantial objective: the edies for breaches of section 13, including objective of the law must relate to pressing and cease-and-desist orders, compensation to the substantial concerns of su% cient importance victim up to $20,000, and a penalty of not more to justify limiting a constitutional right or than $10,000. In determining whether to order freedom; a penalty, the Tribunal must consider: (a) the (b) Rational connection: the law must be nature, circumstances, extent and gravity of the carefully designed to achieve the objective, discriminatory practice; and (b) the willfulness and not based on any arbitrary, unfair or ir- or intent of the person who engaged in the dis- rational considerations; criminatory practice, any prior discriminatory practices that the person has engaged in and the (c) Minimal impairment: the law should im- pair as little as possible the right or freedom; person’s ability to pay the penalty. 21 and

Section 54(1) was amended in 1998 to ex- (d) Proportionality: the e" ect of the law must pand the order-making power of the Tribunal not be disproportional to the objective. 28 in section 13 cases. Prior to the 1998 amend- ments, 22 the Tribunal was restricted to ordering the respondent to cease and desist his conduct, Canada (Human Rights and awarding the victim up to $5,000 in com- Commission) v Taylor pensation for hurt feelings. In 1990, the Supreme Court of Canada con- Charter ! e ’s section 2(b) guarantees to ev- sidered the very issue before the Tribunal in eryone “freedom of thought, belief, opinion and Warman : does the hate message provision of expression, including freedom of the press and the CHRA violate freedom of expression? In 23 Montréal other media of communication.” In 1979, the Tribunal found that John Ross Taylor (City) v 2952-1366 Québec Inc 24 , the Supreme and the Western Guard Party breached section Court of Canada described the legal test for de- 13 of the CHRA by instituting a telephone ser- termining whether a law violates section 2(b) as vice whereby any person could dial a telephone follows: number and listen to a pre-recorded message (a) Does the communication have expressive that said Jews were conspiring to control and content , thereby bringing it within section 2(b) program Canadian society, including its books, protection? schools and media. 29

(b) If so, does the method or location of this Despite the Tribunal’s # nding and a cease- expression remove that protection? and-desist order, Taylor and the Western Guard Party continued the telephone service. ! ey (c) If the expression is protected by section infringe were subsequently found in contempt; the 2(b), does the impugned law that pro- Western Guard Party paid a # ne and Taylor was tection, either in purpose or e" ect? 25 imprisoned. A& er Taylor’s release, he and the Section 2(b) is subject to section 1 of the Char- Western Guard Party resumed the telephone ter , which states: service. ! e Commission sought a contempt order to imprison Taylor. In their defence, ! e Canadian Charter of Rights and Freedoms Taylor and the Western Guard Party relied on guarantees the rights and freedoms set out in the Charter ’s freedom of expression provision, it subject only to such reasonable limits pre- which had been proclaimed in the interim. 30 scribed by law as can be demonstrably justi# ed in a free and democratic society. 26

Constitutional Forum constitutionnel € e Federal Court and the Federal Court tice (commonly referred to as a “cease and de- of Appeal dismissed the application to strike sist order”) and take measures in consultation down section 13 of the CHRA as unconstitu- with the Commission to prevent the same or tional. 31 At the Supreme Court, the Commission similar practice from occurring in the future. conceded that section 13 breached freedom of In 1998 (S.C. 1998, c. 9, s. 28), s. 54(1) was re- expression. e Supreme Court was divided 4–3 placed with a provision stating that the Tribu- nal could not only issue a s. 53(2)( a) order, but on the issue whether section 13 was a reason- it could now also order a respondent able limit on that freedom. 32 • where the discrimination was willful or e Court unanimously held that section reckless, to compensate a victim who was 13’s objective was “the promotion of equal op- speci" cally identi" ed in the hate message portunity unhindered by discriminatory prac- with special compensation of up to $20,000, tices.” 33 However, it divided on whether section pursuant to s. 53(3), and 13 was rationally connected to that objective. e majority held that section 13(1) “operates • to pay a penalty of up to $10,000. to suppress hate propaganda” and reminds Ca- In addition, s. 13 was amended in 2001 (S.C. nadians of the “fundamental commitment to 2001, c. 41, s. 88) to insert a paragraph (the equality of opportunity and the eradication of current version of s. 13(2)) clarifying that the racial and religious intolerance.” 34 e dissent- discriminatory practice set out in s. 13(1) ap- ing reasons held that section 13, especially the plies to communications by means of a com- words “hatred” and “contempt,” were vague puter or group of interconnected or related 38 and overly broad. 35 e dissent also took issue computers, including the Internet. with the absence of any defences to a section Before embarking on the section 1 analysis, the 13(1) claim. 36 e majority held that importing Tribunal made clear that it was bound by Tay- a truthfulness defence or a subjective intention lor , and Lemire could only succeed in his chal- requirement would run contrary to the objec- lenge if Taylor could be distinguished by reason tive of human rights legislation generally. 37 As of these amendments. 39 a result, the Supreme Court upheld section 13(1), and the cease-and-desist order continued In respect of the provision’s objective, against Taylor and the Western Guard Party. Lemire argued that the amendments were made as part of the Anti-terrorism Act , and thus dem- onstrate that section 13(1) is not intended to  e tribunal’s reasons on the prohibit discrimination, but instead “is part of constitutional issues the State’s strategy to eradicate terrorism, and protect the political, social and economic secu- As in Taylor , the government in Warman con- rity of Canada.” 40 e Tribunal dismissed this ceded that section 13 breached Lemire’s free- argument, " nding that section 13(1)’s objective dom of expression. e issue was whether the remained, notwithstanding the amendments, infringement could be justi" ed under section 1. to protect against discrimination in Canadian e Tribunal began by noting that since society. 41 Lemire also argued that Taylor was Taylor was decided, sections 13 and 54(1) had wrongly decided, because the Supreme Court been amended: based its " nding on section 13(1)’s objective on the Report of the Special Committee on Hate Since Taylor , there have been a number of sig- Propaganda in Canada (Cohen Report), which ni" cant changes to s. 13 and its remedial pro- Lemire rebutted using expert evidence. 42 e visions set out in s. 54(1). Under the version of Act Taylor Tribunal dismissed this argument as well, " nd- the examined by the decision, the ing that Taylor identi" ed section 13(1)’s objec- Tribunal could only make an order referred tive from the whole of the Act, and the expert’s to in s. 53(2)( a) of the Act a# er " nding a s. 13 complaint substantiated. us, a person who criticism of the Cohen Report was not a new fact Taylor 43 engaged in this form of discriminatory prac- that justi" ed revisiting this issue from . tice could only be ordered to cease that prac-

€ Volume 19, Number 2, 2011 On the issue of rational connection, the evidence as in a criminal proceeding. 48  e At- Tribunal held that section 13(1) remained ra- torney General argued that the penalty was “ad- tionally connected to the provision’s objectives, ministrative” not penal, and intended to ensure even with the amendments. Lemire had argued compliance with the Act. 49  e Tribunal dis- that section 13(1) was irrational because it pe- missed this argument on the basis that a breach nalized the communication of hate messages of section 54(1) can result (and has resulted) in over the Internet, but not in any other form incarceration for contempt. 50 Further, the impo- (such as if the text was available in a bookstore sition of a penalty under section 54(1) requires or library).  e Tribunal dismissed this argu- consideration of contextual factors, not unlike ment, observing that discriminatory texts in a sentencing in the criminal context, and is not a bookstore or library may be subject to provin- mathematical administrative calculation. 51 cial human rights statutes and, moreover, the Internet assists in hate messages being “repeat-  e ! nal issue that concerned the Tribu- Taylor edly” communicated. 44 nal is that was premised on the Supreme Court’s ! nding the CRHA enforcement of the In analyzing whether section 13(1) mini- CHRA was conciliatory and less confronta- mally impaired Lemire’s freedom of expression, tional that traditional litigation.  e experience the Tribunal revisited the analysis in Taylor . It of section 13(1) runs counter to that view—the concluded that the terms “hatred or contempt” Tribunal found that only 4 percent of section were no more vague or broad than the Supreme 13(1) cases were settled, and in Lemire’s case, Court found in Taylor and there was no basis to Warman refused to mediate or conciliate the displace that ! nding. 45 dispute. 52  e absence of any requirement that the As a result of these distinctions, the Tribu- o" ender “intended” to communicate the hate nal concluded that section 13(1) did not satisfy messages caused the Tribunal pause in light of the Oakes minimal impairment test. 53 Given the new sanctions in sections 13(1) and 54(1). It this ! nding, the Tribunal did not consider the noted: absence of defences to section 13(1) in consider- ing whether the provision was a minimal im-  e fact that the cease and desist order was the pairment or the “proportional e" ects” leg of the only available remedy was identi! ed as char- Oakes test. 54  e Tribunal dismissed the com- acteristic of the conciliatory, preventative, and remedial nature of s. 13, upon which the Su- plaint against Lemire. preme Court based its determination that the provision minimally impacted on the freedom Analyzing the tribunal’s decision of expression. However, the state of a" airs in this respect has signi! cantly changed since  e Tribunal’s decision exposes the fault lines then, with the inclusion of the penalty provi- in the debate over section 13(1) of the CHRA . sion.  e potential “chill” upon free expres-  e debate has been exacerbated by recent sion may have consequently increased. As a result, the Court’s ! ndings regarding whether complaints at the Tribunal and in other juris- dictions against Ezra Levant, Mark Steyn and the absence of an intent condition transgresses Macleans the minimal impairment requirement can be for inciting hatred against Muslims. revisited. 46  ese complaints have been sensationalized by the respondents and by the media. 55  ough the  e Tribunal found the penalty provisions “in- complaints were all dismissed or withdrawn, herently punitive” and outside the scope of the they resulted in a major review of section 13(1) Tribunal’s responsibilities under the CHRA .47 by the Commission. In my view, the Tribunal’s  e Tribunal was also concerned that Tribu- decision re# ects a policy view of section 13(1) nal proceedings are civil in nature, meaning but not a constitutional view.  e logical incon- that the burden of proof is lower and there is sistencies in the decision suggest that the Tri- a lack of institutional safeguards, such as proof bunal adopted an ends-based approach, which of intent and strict application of the rules of

Constitutional Forum constitutionnel € risks undermining the legitimacy of the court legislation minimally impaired freedom of ex- system. pression on this unique characteristic of human rights legislation, which is intended to encour- Judicial decisions are sometimes subject to age the parties to acknowledge the principles of criticism that they are the product of “ends- equality and non-discrimination. based” or teleological reasoning, as compared to “means-based” reasoning. 56 Ends-based rea- ! is reading of Taylor , in my view, is sim- soning seems to have been adopted in Canada’s ply incorrect. In Taylor , Chief Justice Dickson, Charter jurisprudence as early as 1985, when writing for the majority, applied the minimal the Supreme Court determined that the courts impairment test by analyzing four arguments should apply a broad, purposive approach to in- for striking down the provision: (1) the phrase terpreting rights and freedoms. 57 ! e ends-based “hatred or contempt” is overbroad and exces- approach to constitutional decision-making has sively vague; (2) the CHRA does not provide been criticized in both Canada and the U.S. ! e for an exemption to protect freedom of expres- main arguments against ends-based reason- sion, like other anti-discrimination statutes do; ing are: (a) principled or means-based decision (3) section 13(1) is overbroad because it lacks making serves to justify the judiciary as the " - an intent requirement or does not provide for nal word on the constitutionality of laws; (b) the the defence of truthful statements; and (4) the courts are only legitimate if they employ a rea- restriction on telephonic communications is soned and principled judicial method; and (c) a an intrusion on individuals’ privacy rights. ! e principled decision will stand the test of time. 58 Chief Justice dismissed each of these arguments In my view, the ends-based approach is too sus- as insu$ cient to render section 13(1) dispropor- ceptible to politicization and, as a result, can re- tional to the Act’s objectives. 61 quire judges and quasi-judicial decision-makers to be part of the political process. Warman seems to ! e only reference to the penalty associated have been decided without sound legal reasoning with section 13(1) was Taylor’s argument that and, as a result, it brings into question whether his one-year sentence was too severe a response the Tribunal was deciding the law as it is, or as it to a breach of section 13(1). Chief Justice Dick- should be based on the current debate. ! ough son dismissed that argument as well, on two the purposive approach does not necessar- grounds. First, the penalty was for a contempt ily lead to ends-based reasons, decision-makers order that % owed from Taylor’s failure to obey a CHRA risk logically unsound decisions when they rely cease-and-desist order made under the . too much on “context” in reaching their conclu- Second, the Chief Justice disagreed that there sions. In this case, the Tribunal erred in wrong- was a chilling e& ect on freedom of expression, ly applying Taylor and it seems to have done so as imprisonment only % owed from an inten- because of the heated criticism of section 13(1). tional breach of section 13(1): a contempt order can only be made if the respondent continues ! e Tribunal’s decision fails to distin- to disseminate the hate message in the face guish between the constitutionality of section of a " nding that the message constitutes hate 13(1), which remains unchanged by subsequent speech. 62 amendments to the CHRA , and sections 13(2) and 54, which were added a# er Taylor was de- In my view, a potential " ne of $10,000 is cided. 59 Taylor upheld section 13(1), and the de- insu$ cient to take section 13(1) outside the Taylor cision of the Supreme Court of Canada is bind- reasoning in . First, the " ne is relatively Hill v Church of Scientology ing on the Tribunal, so the Tribunal’s decision insubstantial. In of Toronto 63 appears wrong on its face. ! e Tribunal distin- , the Supreme Court declined to set guished Taylor by holding that the absence of aside an $800,000 damages award in a defama- any penal provisions was “characteristic of the tion case. If the Supreme Court was not con- conciliatory, preventative, and remedial nature cerned that such an award would have a chilling of s. 13.” 60 According to the Tribunal’s reasons, e& ect on free speech, it seems incorrect to con- the Supreme Court based its " nding that the clude that a penalty of $10,000 or a maximum award of $30,000 would have such an e& ect.

€ Volume 19, Number 2, 2011 Second, the only added penalty is monetary— most appropriate mechanisms to address hate the threat of imprisonment remains the same messages and more particularly those on the In- as before the 1988 amendments, and ! ows only ternet, with speci" c emphasis on the role of sec- from a contempt " nding. Finally, the new pen- tion 13 of the [ CHRA ] and the role of the Com- alties have to be reviewed in light of the addition mission.” 68 He recommended that section 13 be of section 13(2), which recognizes the impact of repealed. Sections 318 and 319 of the Criminal the Internet on the dissemination of informa- Code 69 make it an o% ence to advocate genocide tion, especially hateful information. It is telling or to incite hatred against a group or to will- that none of the recent hate speech cases deal fully promote hatred against a group on the with telephonic communications, but rather basis of colour, race, religion, or ethnic origin. with Internet postings or print media that is ac- Section 320.1 of the Code allows a judge to or- cessible online. der the seizure and deletion of hate propaganda found on the Internet. Professor Moon argued # e insu$ ciency of the Tribunal’s reasons that the Criminal Code provisions are su$ cient Warman in coincides with a very public debate to enforce the prohibition on hate speech in Ca- about section 13(1) and similar provisions in nadian law. He states: “Hate speech is a serious other jurisdictions. In light of the logical incon- matter that should be investigated by the police sistencies in the Tribunal’s decision, my view is and prosecuted in the courts and should carry a that the Tribunal must have taken into account signi" cant penalty.” 70 the debate around section 13 in reaching its decision. Conclusion: Warman and the risk In February 2006 the Western Standard , which was published by Ezra Levant, printed of ends-based reasoning cartoons depicting the Muslim prophet Mo- # e logical inconsistencies in the Tribunal’s de- hammad. 64 # e Islamic Supreme Council of cision in Warman can only be explained, in my Canada and the Edmonton Council of Muslim view, by an ends-based approach to judicial de- Communities complained to the Alberta Hu- cision-making. By declaring section 13 uncon- man Rights and Citizenship Commission that stitutional, the Tribunal has taken the debate Western Standard the breached the hate speech over section 13 out of the hands of the media provisions in Alberta’s anti-discrimination law. and politicians and thrust it upon the courts, In December 2007, the Canadian Islamic Con- with a focus on what the law should be as op- Macleans gress " led complaints against and posed to what it is . Mark Steyn to the Canadian Human Rights Commission, and in Ontario and British Co- # is type of reasoning is dangerous. It un- lumbia, alleging that the magazine published dermines the legitimacy of the court system and Islamophobic articles, including a column by constitutional democracy by suggesting that the Steyn. 65 constitutionality of legislation depends on the policy or political views of a particular time. # e # ough these complaints were eventually risk for constitutional decision-making more dismissed, they garnered signi" cant press and broadly is that it makes the courts and tribunals prompted political responses. In January 2008, susceptible to arguments of judicial activism. a Liberal Member of Parliament introduced # ough such arguments are usually made by a private member’s motion to repeal section same groups and individuals that might sup- 13. 66 In 2009, the House of Commons Stand- port the Tribunal’s decision in Warman , my ing Committee on Justice and Human Rights view is that the courts (and the Constitution) Committee investigated the Canadian Human are not served by suggestions that their deci- Rights Commission’s mandate, speci" cally with sions are made with one eye on public opinion. respect to section 13. 67 Ends-based reasoning is that much more Against this backdrop, the Commission dangerous in the context of debates around asked Professor Richard Moon to consider “the freedom of expression. In R v Zundel , the Su-

Constitutional Forum constitutionnel € preme Court held that the purpose of section of the Constitution Act, 1982 , being Schedule B to 2(b) is to promote “truth, political or social par- the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. Canada (Human Rights Commission) v Taylor ticipation, and self-ful! llment.” 71 " at purpose 4 , Taylor is contrasted with the promotion of equal op- 1990 CanLII 26 (SCC), [1990] 3 SCR 892 [ ]. 5 See Warman v Kyburz , 2003 CHRT 18, 46 portunity unhindered by discriminatory prac- Warman v Kulbashian tices, which underpins section 13 of the CHRA CHRR 425 (CanLII); , 2006 CHRT 11, 56 CHRR 340 (CanLII); War- and is a principle embodied in section 15 of the man v Winnicki Charter , 2006 CHRT 20, 56 CHRR 381 . In balancing these two important con- (CanLII); Warman v Harrison , 2006 CHRT 30, stitutional or quasi-constitutional objectives, 58 CHRR 414 (CanLII) [ Harrison ]; Warman decision-makers have to be careful not to favour v Kouba , 2006 CHRT 50 (CanLII); Warman v one set of rights over the other. Ends-based rea- Western Canada for US , 2006 CHRT 52 (CanLII); soning may achieve a particular purpose—in Warman v Tremaine , 2007 CHRT 2, 59 CHRR this case, making section 13 inoperative, which 391 (CanLII); Warman v Wilkinson , 2007 CHRT seems to be an outcome favored by politicians, 27 (CanLII); Warman v Beaumont , 2007 CHRT the media and some academics—but the deci- 49, 62 CHRR 261 (CanLII). sion risks being attacked as illegitimate if the 6 Jonathan Kay, “How to turn a Neo-Nazi into a National Post decision-making logic is unsound. " e danger in free-speech martyr” (25 March section 2(b) cases is that decisions risk favoring 2008), online: National Post . is one of the very outcomes that section 2(b) is 7 Warman , supra note 1 at para 11. intended to protect against: “[T]he guarantee 8 Ibid at para 12. of freedom of expression serves to protect the 9 Harrison , supra note 5. right of the minority to express its view, howev- 10 Warman , supra note 1 at paras 20, 30, 50, 62, er unpopular it may be; adapted to this context, 79–138, 145. it serves to preclude the majority’s perception of 11 RSC 1960, c 44. ‘truth’ or ‘public interest’ from smothering the 12 Warman , supra note 1 at paras 3–4, 305. minority’s perception. " e view of the major- 13 Ibid at paras 57, 212. Ibid ity has no need of constitutional protection; it 14 at para 279. Ibid 72 15 at para 296. is tolerated in any event.” " ough this type of Ibid reasoning may ultimately be the byproduct of 16 at para 303. Charter 17 Some of the provincial human rights statutes also a purposive approach to the , constitu- prohibit hate speech: Human Rights, Citizenship tional decision-making should still be ground- and Multiculturalism Act , RSA 2000, c H-14, s ed in principled and logical legal reasoning if it 3(1)(b); Human Rights Code , RSBC 1996, c 210, is to mean anything to the people a# ected by s 7(1)(b); Saskatchewan Human Rights Code , those decisions. SS 1979, c S-24.1, s 14(1)(b); Human Rights Act , SNWT 2002, c 18, s 13(1)(c). 18 CHRA , supra note 2, s 13. Notes 19 SC 2001, c 41, s 88. * B.A. (Hons.) (Alberta), M.A. (Carleton), LL.B. 20 Jane Bailey, “Private Regulation and Public (Ottawa), LL.M. (Osgoode Hall) (expected June Policy: Toward E# ective Restriction of Internet 2011). Ranjan Agarwal is an associate in the Hate Propaganda” (2003) 49 McGill Law Journal litigation department at Bennett Jones LLP in 59 at 67. Toronto. He was called to the Bar of Ontario 21 CHRA , supra note 2, ss 53(3), 54(1)–(1.1). in 2004. Rahool Agarwal, Ken Dickerson and 22 An Act to amend the Canada Evidence Act and Richard Haigh provided comments on an earlier the Criminal Code in respect of persons with dis- version of this article. abilities, to amend the Canadian Human Rights 1 2009 CHRT 26 [ Warman ]. " e Canadian Human Act in respect of persons with disabilities and Rights Commission has applied to the Fed- other matters and to make consequential amend- eral Court for judicial review of the Tribunal’s ments to other Acts , SC 1998, c 9, s 28. decision. 23 Charter , supra note 3, s 2(b). 2 RSC 1985, c H-6 [ CHRA ]. 24 2005 SCC 62, [2005] 3 SCR 141 (CanLII). 3 Canadian Charter of Rights and Freedoms , Part I 25 Ibid at para 56 [emphasis in original].

€ Volume 19, Number 2, 2011 26 Charter , supra note 3, s 1. 57 R v Big M Drug Mart , 1985 CanLII 69 (SCC), 27 1986 CanLII 46 (SCC), [1986] 1 SCR 103. [1985] 1 SCR 295 (CanLII)at para 116. . See also 28 Ibid at paras 69–71. Jonathan L Black-Branch, “Constitutional Ad- 29 Taylor , supra note 4 at 903–04. judication in Canada: Purposive or Political?” 30 Ibid at 905–06. (2000) 21:3 Statute Law Review 163 at 165–166. 31 Canada (Human Rights Commission) v Taylor 58 See e.g. Weiler, supra note 55; Elena Kagan, ! e (1984), 6 CHRR D/2595 (FCTD), a! rmed [1987] Development and Erosion of the American Exclu- 3 FC 593, 37 DLR (4 th ) 577 (CA). sionary Rule: A Study in Judicial Method (M. Phil. 32 Taylor , supra note 4 at 914. " esis, Oxford University, 1983) [unpublished]. 33 Ibid at 918. 59 See generally Ankur Bhatt, “ Warman v. Lemire : 34 Ibid at 923–24. " e Constitutionality of Hate Speech Legisla- 35 Ibid at 960–69. tion” ! e Court (22 September 2009), online: 36 Ibid at 966–67. " e Court . 39 Ibid at paras 216, 221. 60 Warman , supra note 1 at para 262. 40 Ibid at para 230. 61 Taylor , supra note 4 at 926–39. 41 Ibid at para 231. 62 Ibid at 933. 42 Ibid at para 234. See Department of Justice, Re- 63 1995 CanLII 59 (SCC), [1995] 2 SCR 1130. port to the Minister of Justice of the Special Com- 64 Kevin Steel, “Drawing the Line” Western Stan- mittee on Hate Propaganda in Canada (Ottawa: dard (27 February 2006) 15, online: Western- Queen’s Printer, 1966) [Cohen Report]. Standard.ca: . 44 Ibid at paras 245–46. 65 See e.g. “Writers call for probe into human 45 Ibid at paras 252–53. rights commission” CBC News (6 October 2009), 46 Ibid at para 262. online: CBC News . 49 Ibid at para 273. 66 House of Commons, Notice Paper , 39th Parl, 2nd 50 Ibid at para 275. sess, No 41 (31 January 2008), M-446 (Keith 51 Ibid at para 276. Martin). 52 Ibid at para 285. 67 House of Commons, Standing Committee on 53 Ibid at para 290. Justice and Human Rights, Review of the Cana- 54 Ibid at paras 291–94. dian Human Rights Act (Section 13), 40 th Parl, 2 nd 55 See e.g. Ezra Levant, Shakedown: How Our sess (Ed Fast, Chair). Government Is Undermining Democracy in the 68 Canadian Human Rights Commission, Report Name of Human Rights (Toronto: McClelland to the Canadian Human Rights Commission & Stewart, 2009); Joseph Brean, “Hate speech Concerning Section 13 of the Canadian Human law unconstitutional: rights tribunal” National Rights Act and the Regulation of Hate Speech on Post (2 September 2009), online: National Post the Internet by Richard Moon (Ottawa: Canadian ; Jesse McLean, “Hate-speech Report]. law rejected in rights ruling” Toronto Star (3 69 RSC 1985, c C-46. September 2009), online: thestar.com ; Susan 71 1992 CanLII 75 (SCC), [1992] 2 SCR 731 at 732. Krashinsky, “Hate-speech law violates Charter 72 Ibid at 753. rights, tribunal rules” Globe and Mail (2 Septem- ber 2009), online: " e Globe and Mail . 56 Rainer Knop# & FL Morton, Charter Politics (To- ronto: Nelson Canada, 1992); Paul Weiler, “Two Models of Judicial Decision-Making” (1968) 46 Canadian Bar Review 406 [Weiler].

Constitutional Forum constitutionnel €

McIvor v Canada and the 2010 Amendments to the Indian Act : A Half- Hearted Remedy to Historical Injustice

Sarah E. Hamill*

Introduction Prior to Bill C-31, Indian status could be gained or lost in a number of ways which dis- 2010 saw the twenty-! " h anniversary of two proportionately a# ected women. $ e focus of important legal developments in Canada: Bill this article is on the gender inequality of the C-31, which signi! cantly amended the existing pre-1985 system of Indian status and the at- Indian Act, and the coming into e# ect of section tempts to remedy that discrimination. Prior to 15 of the Charter of Rights and Freedoms .1 Sec- 1985, a woman with Indian status would lose tion 15 was partially responsible for the intro- status and band membership if she married a duction of Bill C-31. $ e Canadian government non-status man; a woman without Indian sta- introduced Bill C-31 to address, among other tus would gain it if she married a status man. things, gender discrimination in the system of $ ose women who lost status would not regain Indian status. Bill C-31, however, fell short of its it upon divorce, and those women who gained goal of introducing a gender-neutral system of status would keep it if they got divorced. $ e Indian status under the Indian Act . only way a woman could change her status was if she remarried. Male status was una# ected by Twenty-! ve years a" er Bill C-31, the fed- marriage. Bill C-31 made Indian status perma- eral government has been forced to amend the Indian Act nent for both men and women, and had provi- again, a" er the British Columbia sions allowing for the restoration of status to Court of Appeal found that Bill C-31 preserved those women who had lost it through marriage. 6 aspects of the sexism of the previous system of Indian status, and as such discriminated on the $ e gender discrimination of the Indian ground of gender. 2 $ e case which forced the Act will not be removed by the 2010 amend- 2010 amendments to the Indian Act , McIvor v ments. $ e B.C. Court of Appeal granted a nar- Canada ,3 dealt with the criteria for Indian sta- rower remedy than the B.C. Supreme Court had tus as set out by section 6 of the Act. $ e B.C. granted at ! rst instance, 7 and declared that only Court of Appeal found that Bill C-31 preserved part of section 6 of the Indian Act was invalid some of the explicit gender discrimination of instead of the entire section. 8 While the federal the pre-1985 system of Indian registration. It government decided not to challenge the Court has been known for at least twenty years that of Appeal’s decision, the plainti# in the original Bill C-31 fell short of its stated goal of remov- case, Sharon McIvor, tried to appeal the case to ing gender discrimination from the Indian Act ,4 the Supreme Court of Canada. McIvor attempt- yet it took until 2007 for McIvor’s challenge to ed to appeal the decision because the Court of receive a court ruling. 5 Appeal only addressed the gender discrimina- tion su# ered by McIvor, and not by First Na-

Constitutional Forum constitutionnel € tions women more broadly. 9 ! e Supreme Court eral government seems reluctant to grant a more of Canada denied leave to appeal in November comprehensive redress than that suggested by 2009, 10 clearing the way for the more limited the B.C. Court of Appeal in McIvor . In refusing 2010 amendments to the Indian Act . to properly address the gender discrimination of the Indian Act , the Government of Canada McIvor is the latest case in the battle for has been accused of neglecting its obligations equal rights for the women of Canada’s First under international human rights law. 16 Given Nations when it comes to the inheritance and the length of time that it has taken to get any permanence of Indian status. ! e court cas- kind of remedy for the gender discrimination Re Lavell and Attorney es began in 1969 with in the system of Indian status perpetuated by General of Canada 11 , and went on to be fought Bill C-31, and the potential catastrophic e$ ects before every level of court in Canada, with one of Bill C-31 for the First Nations as a whole, 17 Lovelace v Canada 12 case, , even being taken to the partial remedy provided by McIvor and the the United Nations Human Rights Committee 2010 amendments is unacceptable. ! is article (UNHRC). Both of these cases dealt with First focuses on the relationship between First Na- Nations women who had lost their Indian sta- tions and the federal government with respect tus through marriage, then had subsequently to Indian status and as such it will use a narrow divorced and wished to return to their home de# nition of First Nations to refer to individuals Lovelace reserves. Lavell lost her case, but in , with Indian status who are members of recog- the UNHRC criticised Canada for the gender nised Bands. It will use the term Aboriginal as a Indian Act discrimination in the and in the more inclusive term, which includes status and Lovelace system of Indian status. ! e case and non-status Indians. subsequent international censure provided a further impetus for the Canadian government to reform the Indian Act and Indian status, ul- McIvor and Indian Status timately leading to Bill C-31. Despite Bill C-31 Indian Act and the 2010 amendments, gender discrimi- Prior to the 1985 amendments to the , nation in the Indian Act and in the system of Sharon McIvor was not registered as an Indian. Indian status remains, and thus Indian status McIvor was of First Nations descent on both her continues to violate section 15 of the Charter . mother’s and father’s sides: her maternal grand- mother was a status Indian and her paternal ! e issues raised by the Court of Appeal’s grandmother was entitled to be registered. Both judgment in McIvor , Bill C-31, and the 2010 of McIvor’s grandmothers lived with, but did amendments to the Indian Act are complex. ! e not marry, non-status men and had children complexity is o" en framed as the need to bal- with these men. McIvor’s parents were also un- ance the individual rights of First Nations wom- married. 18 In theory both of McIvor’s parents en with the collective rights of the First Nations could have been registered as Indians under the to self-government. 13 Within the First Nations, pre-1985 Indian Act . ! e pre-1985 Act 19 allowed both sides to the debate accuse each other of the illegitimate children of status women to be perpetuating colonialism as they # ght for their registered as Indians so long as no-one protest- rights. ! e First Nations women challenging ed the registration of the child because of non- the discriminatory provisions of the Indian Act status Indian paternity. 20 ! us McIvor herself in the courts are accused of using the “master’s could have been a status Indian before 1985. tools” in their # ght, 14 whereas the First Nations women accuse the male-dominated First Na- However, McIvor married a non-status Indian tions governments of being “neo-colonial.” 15 man, and under the 1951 version of the Act women with status lost their status when ! is article will explain the background they married a non-status man. Upon her mar- to the McIvor cases and the changes the 2010 riage, McIvor lost any entitlement she had to be amendments have introduced to the system of registered under the 1951 Act. 21 With the in- Indian status. It is clear that gender discrimina- troduction of Bill C-31, which stopped women tion in the Indian Act remains, and that the fed- from gaining or losing status upon marriage

€ Volume 19, Number 2, 2011 and allowed those who had lost status through century women’s movement viewed women as marriage to regain it, McIvor applied for status playing a key role in protecting Anglo-Canadian for herself and her children. In order to under- culture. 27 ! ese non-Native women may have stand the issues in McIvor it is necessary to ex- been seen as vehicles for assimilation within plain what Bill C-31 changed. the reserves themselves. Given the lack of First Nations ancestry of these women, it is hard to  e Background to Bill C-31 see how they could have passed on First Nations 28 Bill C-31 was the result of a lengthy period of culture to their children. Meanwhile, remov- consultation with First Nations groups. 22 ! e ing First Nations women from the reserves and gender discrimination of the 1951 Act had long stripping them of status made it both di" cult and illegal for them to pass on their cultural attracted criticism, but it was the arrival of the 29 Charter in 1982, and the Lovelace case, that pro- practices to their non-status children. ! e vided the impetus for amendment. Under the removal of Indian status meant that First Na- 1951 Act, women automatically acquired the tions women could not exercise their rights to Indian or non-Indian status of their husbands. hunting and # shing without breaking the law. Women without Indian status gained it when For example, McIvor could not # sh with the rest of her First Nation because she lacked Indian they married a status man, and women with 30 status lost it when they married a non-status status. man. ! e loss or gain of status was not altered As a result of the pre-1985 Indian Act , only by death or divorce. ! e only way an Indian men with Indian status could automatically woman could regain status was to marry a sta- pass status onto their children. ! ere was one tus man. exception to this rule, however, and it is this McIvor ! e government of Canada explained the exception which proved crucial in . ! e loss of a woman’s status upon marriage to a non- exception was known as the “Double Mother status man as a way to prevent the non-status Rule.” ! e Double Mother Rule meant that if man from getting access to land reserved for the a child’s mother and grandmother only had a First Nations. 23 ! e status regime was not just right to Indian status because they had mar- ried status Indians, that child would lose Indian about protecting reserve lands. ! e idea of In- 31 dian status is older than Canada itself, and the status at the age of twenty-one. ! e Double colonial governments hoped that the status re- Mother Rule introduced a blood quantum for gime would help assimilate the First Nations. 24 “Indianness”: in order to be an Indian before Bill C-31, you had to have more than one status ! e colonial government intended Indian status 32 to be a temporary measure, a stepping stone on Indian grandparent. the way to First Nations becoming fully Angli- Bill C-31 changed the laws on Indian status cised or Canadianized. ! e Victorian roots of so that no-one would gain or lose status because Indian status ensured that First Nations wom- of marriage, or because of the old Double Moth- en, like their British counterparts, were viewed er Rule. Bill C-31 made Indian status something 25 as the property of their husbands. you had or were entitled to at birth, and if you Arguably, the status regime had a further had status it was yours for life. However, the changes to the regime of Indian status were just way of assimilating the First Nations, beyond Indian Act turning their societies into patriarchies. ! e as- a part of the overhaul of the that Bill similationist aims of the status regime were fur- C-31 represented. thered by the removal of First Nations women ! e system of Indian status and Indian from the reserves and the introduction of non- government created by the Indian Act had long Native women to the reserves. Scholars have been unsatisfactory to members of Canada’s pointed out that within many, if not all First First Nations. ! e First Nations, however, did Nations, women play a key role in transmitting not agree on how best to reform the Indian Act . 26 their culture to the next generation. Likewise, ! e movements for reform that emerged from the late nineteenth century and early twentieth within the First Nations can be divided into two

Constitutional Forum constitutionnel  main groups: the women’s rights movement, Bill C-31 allowed First Nations to draw up and the Aboriginal rights movement. 33 ! e lat- their own membership codes, which could be ter movement wanted greater self-government more restrictive or permissive than the criteria for the First Nations and control over band for Indian status. 40 Bill C-31 also restored the membership, while the former wanted an end status of those First Nations individuals who to the discrimination against women in eligibil- had lost status under the 1951 Act; for example, ity for status and band membership. 34 women who lost status upon marriage to a non- Indian man had their Indian status restored. 41 ! ese two movements clashed over the re- As a result of the changes to Indian status that instatement of women. Several First Nations Bill C-31 introduced, band membership and In- worried that the reserves would be " ooded if all dian status are no longer complimentary. ! ere those who had lost their status were reinstated, are now signi$ cant numbers of status Indians placing already tight band resources under even who are ineligible for band membership, and more stress. In addition there were some First most of these “band-less” Indians are the de- Nations who feared that returning members scendents of women who lost status under the would alter the culture of the bands; some even 1951 Act. 42 worried that it would result in cultural geno- cide. 35 For many First Nations individuals, hav- In the a% ermath of Bill C-31, there are two ing Indian status formed a crucial part of their main categories of status under the Indian Act , identity, but bands worried about the e# ects commonly known as section 6(1) status and sec- that a sudden post-Bill C-31 in" ux of members tion 6(2) status. 43 ! e major di# erence between would have on their band identity, as well as on the two is that those with section 6(1) status can First Nations identity more broadly. automatically pass status on to their children, whereas those with section 6(2) status can only Consequently, the process which resulted in pass status to their children if they have chil- the passing of Bill C-31 took a long time. ! e tri- dren with another status Indian. ! us to have McIvor al judge in provided an overview of the Indian status today, an individual needs to have process, which involved the federal government at least two status grandparents, perpetuating consulting with various First Nations groups. the blood quantum of the old Double Mother As part of the consultation process, the federal Rule. government allowed the First Nations to pro- vide feedback on the proposed amendments. 36 McIvor and Gender Discrimination ! e Assembly of First Nations (AFN) wanted individual bands to have control over the rein- A% er the passage of Bill C-31 in 1985, Sharon statement of women, while the Native Women’s McIvor applied for Indian status on her own be- Association of Canada (NWAC) wanted wom- half and on behalf of her children. Understand- en to be reinstated to band membership before ably, there was a large backlog of cases given the greater powers of self-government were granted. numbers of people applying for status and, as such, it took until 1987 for the Registrar to rule As a result, Bill C-31 was a compromise, and in McIvor’s case. 44 ! e initial ruling was that as with most compromises, it was unsatisfacto- McIvor was entitled to section 6(2) Indian sta- ry to both sides. ! e Sawridge Band of Alberta tus, which meant that she was not automatically launched a challenge against the constitution- entitled to band membership and that her chil- ality of Bill C-31 because it denies First Na- dren were ineligible for Indian status. tions total control over their membership. 37 ! e Sawridge claim is still working its way through McIvor protested the Registrar’s decision, the courts. 38 Meanwhile, First Nations women arguing that she was entitled to be registered quickly realised that the provisions of Bill C-31 under section 6(1)(c) as she was “the illegitimate perpetuated the gender discrimination of the daughter, born before 1951, of an Indian wom- 45 1951 Act. 39 an eligible for status.” It was 1989 before the Registrar replied to McIvor, upholding the ear- lier decision. Consequently, McIvor appealed

€ Volume 19, Number 2, 2011 the Registrar’s decision to the courts, and then ! e B.C. Supreme Court agreed with Mc- launched a Charter challenge to Bill C-31 in Ivor and declared all of section 6 of the Indian 1994. Act “of no force and e# ect insofar, and only in- sofar, as it authorizes the di# erential treatment Char- It took almost twenty years for the of Indian men and Indian women born prior to ter challenge to actually come to trial, and just April 17, 1985, and matrilineal and patrilineal before the case was due to be heard the Regis- descendants born prior to April 17, 1985, in the trar accepted McIvor’s argument and granted conferring of Indian status.” 50 ! e federal gov- her section 6(1) status and her children section ernment appealed this decision, and on April 6, 46 6(2) status. ! e Registrar altered the status of 2009 the British Columbia Court of Appeal de- McIvor based on technicalities over her parents’ livered their judgment. entitlement to registration. 47 ! e Court of Appeal found that the trial Nonetheless, McIvor continued her " ght as judge had granted too broad a remedy. 51 While the changes to Indian status introduced by Bill the court agreed that the Indian Act violated sec- C-31 put her and her descendents in an unequal tion 15 of the Charter , they found a much nar- position compared to that of her brother and his rower violation than the trial judge. ! e court descendents. ! e inequality between male and found that section 6 of the Indian Act resulted female siblings in the same family was obvious in gender discrimination by granting enhanced 48 from the moment Bill C-31 was introduced. status to children who claim First Nations de- Put simply, Sharon McIvor’s grandchildren scent from one male grandparent compared to were not automatically entitled to status, but her children who get their First Nations heritage brother’s grandchildren were. from one female grandparent. 52 ! e court found ! e reason why McIvor’s grandchildren that while many of the di# erences in the ability were not automatically entitled to status, while to transmit status discriminated on the grounds her brother’s grandchildren were, was the end of gender, the discrimination was justi" ed in all of the Double Mother Rule. If we look at the cases except where Bill C-31 had granted en- McIvor hanced status to those previously subject to the facts of but make McIvor a man the fol- 53 lowing results: a status Indian man marries a Double Mother Rule. non-status woman and the woman gains status Due to the " nding of a much narrower under the 1951 Act. ! e children of this mar- Charter violation—namely that the violation riage also have status, and all will have section was the enhanced status Bill C-31 granted to 6(1) status. If the children of this marriage also those who would have lost status under the old marry non-status people, their children will Double Mother Rule, rather than the gender have section 6(2) status, whereas under the 1951 discrimination that remained unaddressed by Act they would have lost status at age twenty- Bill C-31—the Court of Appeal only declared one. If the section 6(2) grandchildren have chil- sections 6(1)(a) and 6(1)(c) of the Indian Act to dren with non-status people, these children will be of no force and e# ect insofar as they grant be ineligible for status under the second genera- greater rights to those who would have been tion cut-o# introduced in Bill C-31. subject to the Double Mother Rule. ! e Court ! e inequality resulting from the abolition suspended the declaration of invalidity for one year to allow the federal government to amend of the Double Mother Rule would only apply 54 during the transition period from the 1951 Act the Act. Indian Act to the current . ! e result was that Following the announcement that the fed- the second generation cut-o# took e# ect one eral government would not challenge the Court generation earlier for descendents of Indian of Appeal’s ruling, Sharon McIvor was hailed as women than for descendents of Indian men. a hero. 55 Yet McIvor herself tried to appeal the McIvor argued that this inequality was a result judgment to the Supreme Court of Canada. She of gender discrimination and as such violated pointed out that the Court of Appeal’s remedy Charter 49 section 15 of the . only ended part of the gender discrimination

Constitutional Forum constitutionnel € under the Indian Act . For example, the Court other interested parties to comment on them, of Appeal’s remedy did not address the historic the amendments did not go through a proper discrimination su! ered by First Nations wom- consultation process. 61 " e Congress of Ab- en. Nor did it address women who lost status in original Peoples (CAP), a group that represents ways other than marriage. 56 McIvor hoped that o! -reserve and non-status Indians, criticised the Supreme Court of Canada would clarify the the government for failing to properly consult steps Parliament needed to take to redress the the First Nations over the amendments. 62 " ey ongoing gender discrimination under the In- also criticised the government for not o! ering dian Act .57 When McIvor’s application for leave a comprehensive redress to all forms of gen- to appeal to the Supreme Court of Canada was der discrimination under the Indian Act .63 " e denied, it cleared the way for the federal gov- AFN were critical of the government’s failure ernment to amend the Indian Act to make it to properly consult the First Nations about the comply with the Court of Appeal’s judgment. 2010 amendments. 64 " ey argued that the solu- tion to the ongoing discrimination was to allow First Nations to decide who their citizens are. 65  e 2010 amendments to the " e NWAC was critical of the 2010 amend- Indian Act ments because the amendments do not address all of the gender discrimination under the Indi- In keeping with the narrow declaration of in- an Act .66 " e NWAC was also concerned about validity of the Court of Appeal’s judgment, the decline in the number of First Nations in- Indian Act the 2010 amendments to the only dividuals who would be entitled to status. 67 " e deal with the enhanced status that Bill C-31 Métis National Council urged the government granted to those who would have been subject to undertake serious reform of the system of to the Double Mother Rule. " e result of the Indian status, including provisions to allow in- 2010 amendments is to put women like Sha- dividuals to have their names struck from the ron McIvor on an equal footing with their male registry; they also echoed the AFN’s comments siblings when it comes to passing Indian status on granting First Nations and Métis groups to their grandchildren. " e 2010 amendments control over their own citizenship. 68 preserve the second generation cut-o! of the current Indian Act which continues to cause " e B.C. Court of Appeal judgment only “deep anguish across communities of First Na- gave the federal government one year to amend tions” because it seems to signal the end of the the Indian Act ; as such, the government did not First Nations themselves. 58 " e second genera- have the time to undertake a comprehensive tion cut-o! rule, if is it not changed, could re- consultation process. Nor did the federal gov- sult in a situation where there are no longer any ernment show any desire to undertake such a status Indians in Canada. 59 " e lack of status process of its own accord, which suggests that Indians does not automatically mean the end of they wished to avoid a discussion that could the First Nations; it is possible that there would lead to a signi$ cant overhaul of the status re- still be people entitled to band membership gime. A skeptical reading of the federal govern- even if they did not have status. However, given ment’s treatment of Sharon McIvor suggests that bands are funded according to the num- that the government was trying to avoid a trial ber of status Indians they have as members, the on the issue of gender discrimination under the second generation cut-o! rule raises questions Indian Act, as the trial may have forced the gov- about how bands will be funded in the future ernment to undertake a complete overhaul of if they no longer have any status Indians as the system of Indian status. For example, their members. 60 last-minute granting of status to McIvor’s chil- dren could be construed as an attempt to per- " e 2010 amendments are not without suade McIvor to drop the case. controversy. Although the federal govern- ment publicised the proposed amendments in " e federal government has long been a discussion paper to allow First Nations and aware of the gender discrimination in the In-

€ Volume 19, Number 2, 2011 dian Act . In 2008 the Canadian government re- education funding and health care bene% ts that ceived international censure over the continued those with status were and are entitled to. 78 discrimination against Aboriginal women. 69 While the 2010 amendments address McIvor’s While some of the criticism dealt with discrim- situation, they do not, as McIvor herself point- ination in the Indian registration system, the ed out, address the historical injustice that the rest of the criticism over Canada’s treatment of status regime is responsible for. ! e B.C. Court Aboriginal women dealt with issues that were of Appeal said that the Charter was not meant not mentioned in McIvor . ! ese issues include to apply retroactively but that it does apply to the fact that Aboriginal women living on re- continuing government action. 79 ! e court said serves have less legal protection than those who that it “would not be appropriate for the Court live o" -reserve, and the disproportionate num- to augment Mr Grismer’s [McIvor’s son] Indian ber of Aboriginal women in prison. 70 status [as] there is no obligation on government to grant such status.... In the end, the decision Canada has been receiving international as to how the inequality should be remedied is censure over its treatment of Aboriginal women one for Parliament.” 80 ! e court did not, how- since Sandra Lovelace took her case to the Unit- ever, order the federal government to address ed Nations. In 1980 the Canadian government the continuing inequality of Indian status. ! e Indian Act agreed that the that was then in force court said that Bill C-31 “does treat Mr Grismer needed reform, but said that internal divisions in a manner with the legislative regime going within the First Nations would make it di# - forward” and because of this the discrimination 71 cult to amend the Act. Given the continuing of Bill C-31 is proportional to the “pressing and con$ ict within First Nations over individual substantial objective that it set out to serve.” 81 and Aboriginal rights it is likely that the federal ! e message is clear: as important as Indian government will continue to use this division to status might be to individuals of Aboriginal 72 avoid addressing the issue. descent, it serves a government purpose which More than one scholar has pointed out, takes precedence over status’s importance to the however, that the Canadian government cannot First Nations and others of Aboriginal descent. avoid its obligation to uphold women’s rights. 73 ! e implication is that when the government As convincing and correct as the argument that decided to move the system of Indian registra- the federal government has a duty to end dis- tion forwards it was acceptable to leave some of crimination against Aboriginal women is, it the previous system’s wrongs in place. does oversimplify the issue. Val Napoleon has pointed out that the problems of the First Na- Conclusion tions will not be % xed by human rights legisla- tion. 74 However, the issue of the ongoing gen- ! e McIvor case points to the urgent need to der discrimination under the status regime can address the ongoing issues surrounding status be % xed without touching issues such as band and the Indian Act, but it also points to the fed- membership. 75 While ending gender discrimi- eral government’s reluctance to undertake the nation under section 6 of the Indian Act would in-depth consultation process that a complete not address all forms of discrimination su" ered overhaul of Indian status would require. It has by Aboriginal women, it would end the gender been twenty-% ve years since Bill C-31 and the discrimination in the “special relationship be- Bill’s reinstatees are aging. 82 Soon the second tween [Aboriginal] individuals and the federal generation cut-o" rules will start a" ecting de- government” that Indian status represents. 76 scendents of First Nations men and women. As far as the First Nations are concerned, the Sharon McIvor and her son testi% ed as to survival of status through the generations is of the traumatic e" ects of not having status on the utmost importance. For some, “the limits their lives, saying that they felt as though they placed on transmission of status are experi- were not treated as “real Indians” by other mem- enced as an act of genocide.” 83 bers of their family. 77 ! eir lack of status meant that they were ineligible for the post-secondary

Constitutional Forum constitutionnel € Bill C-31 has been recognised as ! awed in 1989 was an appeal of the Registrar’s decision, since the moment of its enactment and Bill C-3 but in 1994 McIvor $ led a Charter challenge of does not address all of Bill C-31’s ! aws, but the the Indian Act as amended by Bill C-31. " e Mc- Ivor federal government seems reluctant to do any- decisions result from the latter court action. thing to remedy the situation. Consequently, 6 For an overview of gender discrimination in the gender discrimination in the system of Indian pre-1985 system of Indian status and the changes brought by Bill C-31, see McIvor (BCSC), ibid at 84 McIvor status remains and is perpetuated. " e paras 47–87. case took over two decades to reach a conclu- 7 Ibid at para 351. sion, and the First Nations do not have two de- 8 McIvor (BCCA), supra note 2 at paras 152–61. cades to wait for another case to work its way 9 McIvor’s original statement of claim makes her through the courts and force further amend- aim clear: “First Nations women have historically ments to the Indian Act . Given the current dis- been discriminated against on the basis of sex. advantages faced by First Nations women, the For example, pursuant to the various Indian Acts , federal government does, however, have a role prior to 1985, First Nations women registered as to play in discussions over Indian status, such Indians who married ... non-Indians lost their as whether and how it should be continued. " e Indian status, band membership, and Indian rights.” McIvor (BCSC), supra note 5 at para 104. voices and opinions of First Nations women, in- McIvor v Registrar, Indian and Northern A! airs cluding those who are not currently entitled to 10 Canada and Attorney General of Canada , 2009 status, need to be heard in any future discus- CanLII 61383 (SCC). sions about Indian status and making sure they 11 (1971) 22 DLR (3d) 182 (Ont Co Ct). are heard is the duty of the federal government. 12 Sandra Lovelace v Canada , Communication No R6/24, UN Doc Supp No 40 (A/36/40) [ Lovelace ]. Lovelace v Canada, UN Petition R 6/24 (1981) Notes Report of the Human Rights Committee, UN GAOR, 36th Sess, Supp No 40, UN Doc A/36/40 * Ph.D Candidate, University of Alberta, Faculty (1981); Lovelace v Canada, 24/1977, UN Doc of Law. I would like to thank Val Napoleon for CCPR/C/13/D/24/1977 (1981). her thoughtful comments which challenged me 13 See generally, Wendy Moss, “Indigenous Self- to write a better paper. I would also like to thank Government in Canada and Sexual Equal- Ken Dickerson for his helpful editorial sugges- ity Under the Indian Act : Resolving Con! icts tions. All errors and omissions are my own. Between Collective and Individual Rights” (1990) 1 RSC 1985 c I-5 [ Indian Act ]; Canadian Charter of 15 Queen’s Law Journal 279 [Moss]. " e exact Rights and Freedoms, Part I of the Constitution nature of the collective rights of the First Nations Act, 1982 , being Schedule B to the Canada Act, varies from nation to nation but some common- 1982 (UK), 1982, c 11 [ Charter ]. alities are the right to self-government as well as 2 McIvor v Canada (Registrar of Indian and North- rights to land, and hunting and $ shing rights. ern A! airs), 2009 BCCA 153 (CanLII) at para 14 Sharon Donna McIvor, “Aboriginal Women 165 [ McIvor (BCCA)]. For the 2010 amendments, Unmasked: Using Equality Litigation to Advance see Gender Equity in Indian Registration Act , 3rd Women’s Rights” (2004) 16 Canadian Journal of Sess, 40th Parl, 2010. " is Act entered into force Women and the Law 106 at 111 [McIvor, “Aborig- on 31 January 2011 and will have retrospective inal Women”]. e# ect. Gender Equity in Indian Registration Act 15 Ibid at 128. SC 2010, c 18. 16 Moss, supra note 13 at 282. Of particular rel- 3 McIvor (BCCA), supra note 2. evance to the gender discrimination su# ered 4 Joan Holmes, Bill C-31: Equality or Disparity? " e by First Nations women is Convention for the E! ects of the New Indian Act on Native Women Discrimination of All Forms of Discrimina- (Ottawa: Canadian Advisory on the Status of tion Against Women , 18 December 1979, 1249 Women, 1987) at 2 [Holmes]. UNTS 13, A/RES/34/180 (accession by Canada 5 McIvor v " e Registrar, Indian and Northern Af- 10 December 1981). For the most recent report fairs Canada , 2007 BCSC 827, [2007] 3 CNLR 72 on Canada see United Nations, Convention on (CanLII) [ McIvor (BCSC)]. " e case has a lengthy the Elimination of All Forms of Discrimination history which is outlined in depth at paras Against Women, Concluding Observations of the 103–15. " e original action launched by McIvor Committee on the Elimination of Discrimination

€ Volume 19, Number 2, 2011 Against Women, UN Doc CEDAW/C/CAN/CO/7 supra note 5 at para 44. (7 November 2008) [CEDAW]. CEDAW men- 36 McIvor (BCSC), supra note 5 at paras 47–72. tions the Indian Act and the gender discrimina- 37 Sawridge Band v Canada, 1995 CanLII 3521, tion inherent in the current Indian status regime [1996] 1 FC 3, [1995] 4 CNLR 121. " is decision at para 17. was reversed by Sawridge Band v Canada , 1997 17 Sebastien Grammond, “Discrimination in the CarswellNat 936 with additional reasons in Saw- Rules of Indian Status and the McIvor Case” ridge Band v Canada , 1997 CanLII 5294, [1997] (2009) 35 Queen’s Law Journal 421 at 432 3 FC 580. A full history of this court action is [Grammond]. beyond the scope of this paper but the trial deci- 18 McIvor (BCSC), supra note 5 at paras 88–93. sion has been repeatedly reconsidered and there 19 Indian Act , SC 1951, c 29. are endless motions and appeals connected with 20 Ibid at s 12(1a) as am by SC 1956, c 40. the evidence given in this trial. When referring 21 McIvor (BCSC), supra note 5 at para 93. to the ongoing court cases unless I am speci! c- 22 Ibid at paras 47–79. ally citing to one judgment in the saga I will refer 23 Ibid at para 21. to the series of court actions as Sawridge Band. 24 Ibid at para 13. 38 Sawridge First Nation v Canada , 2008 FC 322 25 Ibid at para 12; Jo-Anne Fiske & Evelyn George, (CanLII) at paras 226–27. Seeking Alternatives to Bill C-31: From Cultural 39 Holmes, supra note 4 at 22–26. Trauma to Cultural Revitalization ! rough Cus- 40 Indian Act, supra note 1 at s 10. tomary Law (Ottawa: Status of Women Canada, 41 Ibid at s 6. 2006) at 4 [Fiske & George]. 42 McIvor (BCSC), supra note 5 at para 87. 26 Holmes, supra note 4 at 10. 43 Section 6(1) also has several sub-categories of 27 Margaret Jane Hillyard Little, ‘No Car, No Radio, status but each sub-category has the same rights No Liquor Permit’: ! e Moral Regulation of Single and entitlements. Mothers in Ontario, 1920-1997 (Oxford: Oxford 44 McIvor (BCSC), supra note 5 at paras 98–99; for University Press, 1998) at xiii, 21. information on the backlog see Holmes, supra 28 Holmes, supra note 4 at 10. note 4 at 30–31. 29 For example, Sharon McIvor testi! ed that her 45 McIvor (BCSC), supra note 5 at para 101. father was arrested for hunting: McIvor (BCSC), 46 Ibid at para 113. supra note 5 at para 127. 47 Ibid at para 122. 30 Ibid at para 280. Since Bill C-31 there have been 48 Holmes, supra note 4 at 22–23. a series of court cases which have extended hunt- 49 McIvor (BCSC), supra note 5 at para 5. ing rights and other Aboriginal rights to non- 50 Ibid at para 351. status individuals. 51 McIvor (BCCA), supra note 2 at paras 95, 152. 31 McIvor (BCCA) supra note 2 at para 5. 52 Ibid at paras 154–55. 32 " e American test for Indian status has a blood 53 Parliamentary Information and Research Ser- quantum element, but this element is under at- vice, Bill C-3: Gender Equity in Indian Registra- tack and the amount of Indian blood required tion Act by Mary C. Hurley (Ottawa: Library of has varied over the years. Weston Meyring, “ ‘I’m Parliament), 40-3-C3-E (18 March 2010) at 10; an Indian Outlaw, Half Cherokee and Choctaw’: McIvor (BCCA), supra note 2 at paras 95–101, Criminal Jurisdiction and the Question of Indian 123–151, 154–55. Status” (2006) 67 Montana Law Review 177. 54 McIvor (BCCA), supra note 2 at paras 161, 33 I use “Aboriginal” here as that is the terminology 165–66. used by the B.C. Supreme Court to describe the 55 Green Party of Canada, “Green Party Com- movement: McIvor (BCSC), supra note 5 at para mends Sharon McIvor as a Champion for 40. I use “Aboriginal rights” when referring to Women’s Rights” (9 April 2009), online: ; Public thing wrong with the lack of consensus among Service Alliance of Canada, “Justice for Sharon the First Nations over the Indian Act reforms; a McIvor and all First Nations women – at last!” (4 lack of consensus is not problematic in a dem- June 2009), online: psac.com . overlook, McIvor (BCCA), supra note 2 at para 27. 56 For example, illegitimate male descendents of a 35 Holmes, supra note 4 at 35–36; McIvor (BCSC), status Indian got status pre-Bill C-31 but illegit-

Constitutional Forum constitutionnel € imate female descendents did not. Following Evidence , 40th Parl, 3 rd sess, No 008 (13 April Bill C-31, the illegitimate daughters of men with 2010) at 7–8 (Jeannette Corbiere Lavell). Indian status were granted section 6(2) status 68 House of Commons, Standing Committee on and not the section 6(1) status their brothers had. Aboriginal A! airs and Northern Development, House of Commons Standing Committee on Evidence , 40th Parl, 3 rd sess, No 009 (15 April Aboriginal A! airs and Northern Development, 2010) at 12–13 (Kathy Hodgson-Smith). Evidence , 40th Parl, 3 rd sess, No 008 (13 April 69 CEDAW, supra note 16. 2010) at 3 (Sharon McIvor). 70 Ibid at paras 19, 43. 57 “Sharon McIvor’s Response to the August 2009 71 Lovelace, supra note 12 at para 5. Proposal of Indian and Northern A! airs Canada 72 Many Aboriginal scholars have pointed out that to Amend the 1985 Indian Act” (6 October 2009), this division is a false dichotomy: McIvor, “Ab- online: UBC Feminist Legal Studies < http://fac- original Women,” supra note 14; Val Napoleon, ulty.law.ubc.ca/c" s/feminist_legal_studies/pdf/ “Aboriginal Discourse: Gender, Identity and Sharon’s%20%20McIvor%20Response%20to%20 Community,” in Benjamin J. Richardson, Shin INAC%20Proposal.pdf> [McIvor’s Response]. Imai & Kent McNeil, eds, Indigenous Peoples and 58 Holmes, supra note 4 at 52. the Law: Comparative and Criticial Perspectives 59 Elizabeth Jordan, “Residual Sex Discrimination (Oxford: Hart Publishing, 2009) 233. in the Indian Act : Constitutional Remedies,” 73 Joyce Audry Green, Exploring Identity and (1995) 11 Journal of Law and Social Policy 213 at Citizenship: Aboriginal Women, Bill C-31 and 226 [Jordan]; Fiske & George, supra note 25 at 21, the Sawridge Case (Ph.D $ esis, Department of 45; Grammond, supra note 17 at 432. Political Science, University of Alberta, 1997) at 60 Jordan, supra note 59 at 226. 194 [Green]; Moss, supra note 13 at 282. 61 Minister of Indian A! airs and Northern De- 74 Val Napoleon, “Extinction by Number: Colonial- velopment and Federal Interlocutor for Metis and ism Made Easy” (2001) 16 Canadian Journal of Non-Status Indians, “Discussion Paper: Changes Law and Society 113 at 141. to the Indian Act a! ection Indian Registra- 75 McIvor’s Response, supra note 57 at 5–7. tion and Band Membership, McIvor v. Canada ” 76 Ibid at 5. (2009), online: Indian and Northern A! airs Can- 77 McIvor (BCSC), supra note 5 at paras 280, 137. ada . 79 McIvor (BCCA), supra note 2 at paras 47–48. 62 Congress of Aboriginal Peoples, “Response to 80 Ibid at para 160. Canada’s Engagement Process A! ecting Indian 81 Ibid at paras 144–150. Registration and Band Membership” (November 82 Green, supra note 73 at 146. 2009), online: abo-peoples.org . 63 House of Commons, Standing Committee on Aboriginal A! airs and Northern Development, Evidence, 40 th Parl, 3 rd sess, No 008 (13 April 2010) at 15–16 (Betty Ann Lavallée). 64 Assembly of First Nations, Special Chiefs Assem- bly, “Federal Approach to the McIvor Decision of the BC Court of Appeal” Resolution no. 38/2009 (December 2009), online: afn.ca . 65 House of Commons, Standing Committee on Aboriginal A! airs and Northern Development, Evidence, 40 th Parl, 3 rd sess, No 009 (15 April 2010) at 1–3 (Jody Wilson). 66 Native Women’s Association of Canada, “Ab- original Women Lose in Dismissal of McIvor Decision” (6 November 2009), online: nwac.ca . 67 House of Commons, Standing Committee on Aboriginal A! airs and Northern Development,

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