The Forgotten Fundamental: Freedom of Conscience in Canada
by
Brian Darrell Noel Bird
Faculty of Law
McGill University, Montreal
June 2019
A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Doctor of Civil Law
© Brian Darrell Noel Bird, 2019
I embarked on my doctoral journey with the hope that it would challenge me and spur my growth as a scholar, but more importantly as a person. This hope, I believe, has been realized. This journey has been a demanding but most rewarding experience.
Many told me that the quality of a doctoral supervisor is crucial to the quality of the doctoral experience. They were right. I consider myself incredibly fortunate to have had Professor Robert Leckey as my supervisor. His insightful and invaluable guidance from start to finish pushed me to reach higher. His supervision has contributed immensely to my growth as a scholar.
I am also indebted to the members of my advisory committee: Professor Johanne Poirier and Professor Victor Muñiz-Fraticelli. I am deeply grateful for the time they devoted to carefully reviewing draft chapters and for their excellent feedback and suggestions.
I am deeply grateful to the Faculty of Law at McGill University for its generous financial support. I am equally grateful to the Social Sciences and Humanities Research Council as well as the Law Foundation of British Columbia for their financial support of my doctoral studies.
Last, but certainly not least, I thank my parents, sisters, family, and friends for their unwavering encouragement during this journey – especially at trying moments. I especially thank Liesel, my beautiful wife, for her loving support. Without it, this thesis would never have been finished.
I dedicate this thesis to my parents, Brian and Rosemarie, who inspired my love of learning.
ABSTRACT
Freedom of conscience is, relative to other human rights, unknown. This thesis breathes life into this human right, using Canada as a point of entry. What is the substance of freedom of conscience? Why protect that substance in bills of rights? When can states limit this freedom? This thesis proposes that freedom of conscience protects the freedom to live in alignment with moral commitments, whether they stem from religious or non-religious sources. Integrity and identity are the primary reasons why freedom of conscience makes the cut for bills of rights. A person compromises these values when she betrays her moral commitments. This betrayal can be harmful, and may injure her dignity. Given the significance of the interests standing behind freedom of conscience, this thesis proposes that this human right deserves robust protection. Even so, freedom of conscience is not absolute. At times, states may limit freedom of conscience – for example, where exercises of this freedom negate the essence of a profession, harm others, or injure dignity. A limit on freedom of conscience occurs only where states require a person, on pain of legal sanction, to materially cooperate with what she believes is immoral. After building a theory of this human right, this thesis applies that theory to invocations of freedom of conscience in two contexts: healthcare and marriage. On healthcare, this thesis proposes, as a way to reconcile the competing rights and interests of patients and physicians, to allow freedom of conscience to the point of refusals to refer. On marriage, conscientious objection often takes the form of refusals to solemnize the civil marriages of same-sex couples or to provide services for their wedding celebrations. This thesis proposes that it is justifiable to limit freedom of conscience here. These refusals injure dignity. Moreover, refusals to solemnize civil marriages negate the essence of specialized roles such as that of a marriage commissioner. The divergent outcomes in the case studies is largely explained by a major difference in the stakes. Healthcare concerns life and death. Between conscientious objectors and persons adversely affected by their objections, there is a deeper clash of interests such as harm and dignity in healthcare than in marriage. There is also a distinction as to complicity with perceived immorality. The nexus between the baker or florist and same-sex marriage is more remote than the nexus between the physician and abortion or assisted death, even if the act is a referral. Freedom of conscience tests the commitment of liberal democracies to accommodate diversity. When must private conscience yield to public authority? This is the heart of the matter.
RÉSUMÉ
La liberté de conscience est, par rapport aux autres droits de la personne, inconnue. Cette thèse donne vie à ce droit de la personne en utilisant le Canada comme point d’entrée. Quelle est la substance de la liberté de conscience ? Pourquoi protéger cette substance dans les déclarations de droits ? Quand les États peuvent-ils limiter cette liberté ? Cette thèse propose que la liberté de conscience protège la liberté de vivre en harmonie avec les convictions morales, qu’ils soient de sources religieuses ou non. L’intégrité et l’identité sont les principales motivations pour l’inscription de cette espèce de liberté dans les déclarations de droits. Une personne compromet ces valeurs lorsqu'elle trahit ses convictions morales. Cette trahison peut être dommageable et nuire à sa dignité. Vu la signification des intérêts qui sous-tendent la liberté de conscience, cette thèse propose qu’elle mérite une protection importante. Malgré cela, la liberté de conscience n'est pas absolue. Le cas échéant, les États peuvent limiter la liberté de conscience – par exemple, lorsque l'exercice de cette liberté nie l'essence même d'une profession, fait mal aux autres ou porte atteinte à leur dignité. Une limite à la liberté de conscience ne survient que lorsque les États exigent qu'une personne, sous peine de sanction légale, coopère matériellement avec ce qu'elle croit immoral. Cette thèse considère l’exercice de la liberté de conscience dans deux contextes : les services de santé et le mariage. Elle propose, comme moyen de concilier les droits et intérêts opposés des patients et des médecins, de permettre la liberté de conscience jusqu’au refus de diriger les patients vers un autre médecin. En matière de mariage, l'objection de conscience prend souvent la forme de refus de célébrer les mariages civils de couples de même sexe ou de fournir des services pour leurs mariages. Cette thèse propose qu'il soit justifié de limiter la liberté de conscience ici. Ces refus portent atteinte à la dignité. De plus, les refus de célébrer des mariages civils nient l’essence de rôles spécialisés tels que celui de commissaire aux mariages. Les résultats divergents dans les études de cas s'expliquent en grande partie par une différence majeure dans ce qui est en jeu. Les services de santé concernent la vie et la mort. Entre les objecteurs de conscience et les personnes touchées négativement par leurs objections, il y a un conflit d'intérêts plus profond tel que le préjudice et la dignité dans les services de santé que dans le mariage. Il existe également une distinction de complicité avec l'immoralité perçue. La liberté de conscience met à l'épreuve la détermination des démocraties libérales de prendre en compte la diversité. Quand la conscience privée doit-elle céder le pas à l'autorité publique? C'est le cœur du problème. 1
The Forgotten Fundamental: Freedom of Conscience in Canada
Table of Contents INTRODUCTION ...... 4
Chapter 1 – Freedom of Conscience in Canada: Legal History ...... 22 Introduction ...... 22 I. Freedom of Conscience before the Charter ...... 24 World War I ...... 26 World War II ...... 30 Legislation ...... 36 Jurisprudence ...... 38 II. Freedom of Conscience in the Charter ...... 43 Drafting the Charter ...... 43 Early Charter Scholarship ...... 47 Jurisprudence – Supreme Court of Canada ...... 49 Jurisprudence – Other Canadian Courts ...... 55 Conclusion ...... 59
Chapter 2 – Defining Freedom of Conscience (and Religion) ...... 62 Introduction ...... 62 I. A Primer on Conscience ...... 63 Origins ...... 64 Plato & Aristotle ...... 66 Medieval Conscience ...... 68 Reformation Conscience ...... 72 Towards Secular Conscience ...... 74 II. Interpreting Freedom of Conscience ...... 76 Other Bills of Rights ...... 76 2
The Charter ...... 81 Freedom of Religious Conscience ...... 83 Freedom of Secular Conscience ...... 86 Freedom of Moral Conscience ...... 88 The Scope of Freedom of Conscience ...... 93 Collective Conscience? ...... 95 III. What about Freedom of Religion? ...... 97 Conclusion ...... 103
Chapter 3 – The Normative Reasons for Freedom of Conscience ...... 105 Introduction ...... 105 I. Conscience and Integrity ...... 107 Conceptions of Integrity ...... 109 Freedom of Conscience and Integrity ...... 111 The Value of Personal Integrity ...... 114 II. Conscience and Identity ...... 118 Identity and Pursuit of the Good ...... 122 Identity and Unthinkable Acts ...... 124 Identity and Moral Agency ...... 125 III. Injury to Conscience ...... 128 Moral Distress and Injury ...... 128 The Guilty Conscience ...... 130 Conscience and Dignity ...... 133 IV. Figures of Conscience...... 136 Conclusion ...... 143
Chapter 4 – Limiting Freedom of Conscience...... 145 Introduction ...... 145 I. Limiting Human Rights ...... 147 Proportionality and the Value of Rights ...... 149 Alternative Measures and Reasonable Accommodation ...... 154 3
II. Proving Limits on Freedom of Conscience ...... 158 Material Cooperation ...... 162 Legal Responsibility for Action ...... 164 Objective or Subjective Test? ...... 168 III. Justifying Limits on Freedom of Conscience ...... 170 Harm ...... 170 Human Dignity ...... 171 Undue Hardship ...... 178 Conclusion ...... 182
Chapter 5 – Healthcare ...... 184 Introduction ...... 184 I. The Debate on Conscience in Healthcare ...... 186 II. The Charter, Human Rights, and Healthcare ...... 201 III. Referrals ...... 211 Conclusion ...... 229
Chapter 6 – Same-Sex Marriage in Canada...... 231 Introduction ...... 231 I. Solemnization of Marriage in Canada ...... 233 II. Same-Sex Marriage in Canada ...... 235 III. The Moral Judgment on Marriage ...... 240 IV. Marriage Commissioners ...... 248 V. Wedding Service Providers ...... 261 Conclusion ...... 272
CONCLUSION ...... 275
BIBLIOGRAPHY ...... 288
4
INTRODUCTION
The Forgotten “Fundamental Freedom”
Seventy years after the advent of the Universal Declaration of Human Rights in 1948, a watershed moment for the protection of human rights under the law, some rights remain universally neglected. This thesis breathes life into one of them: freedom of conscience.
Conscience instantly brings to mind morality, ethics, right and wrong, and an inner voice that urges each person to do good and avoid evil. In popular culture, that voice often belongs to an angel sitting on a person’s shoulder – while, on the other shoulder, a devil tempts a person to commit evil. While invocations of conscience are often intertwined with invocations of religion, there is a rich tradition – dating back to antiquity – of studying conscience independently from religion. It is instinctual to say that everyone has a conscience, but not that everyone has a religion. This instinct is expressed in Article I of the Universal Declaration, which proclaims that all human beings are “endowed with reason and conscience”.1
Over the centuries, the choice to follow conscience has been made by many individuals despite the adverse consequences of doing so – even death. These individuals, though persecuted in their time, are often seen in a better light later on. Muhammad Ali, for his conscientious refusal to fight in the Vietnam War, was stripped of his world heavyweight championship and banned from boxing for three years. Ali was arrested, tried, and convicted of evading military service. Desmond Doss, a pacifist who suffered ridicule for refusing to bear arms during World
War II, won the US Medal of Honor for his heroism as a combat medic. The Oscar-winning film Hacksaw Ridge recounts his story. Thomas More, the 16th century Chancellor of England,
1 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, art I. 5 lost his head for refusing to recognize the decision of King Henry VIII to split from the Catholic
Church. Today pilgrims honour the “man for all seasons” by visiting the place where his head now lies. That place is an Anglican church in Canterbury – a poignant twist of fate, as the
Church of England is what More conscientiously refused to recognize.
Admiration for these figures of conscience today – regardless of whether one shares their convictions – reveals a shared respect for moral courage. It also speaks to the universality of conscience: each person has one. While most of us will never be forced to choose between life and conscience, we all hope to be free to choose the latter should the scenario ever confront us.
The freedom to follow conscience is also valued in the circumstances of everyday life. Most individuals dread the prospect of being told to violate their moral convictions or suffer some adverse consequence, such as losing a job.
Today, more so than before, reliance on freedom of conscience implicates the interests and rights of other citizens. Conscientious objection to military service does not adversely impact other citizens in an immediate sense, while conscientious refusals to provide lawful healthcare services such as abortion or assisted death do. Conscientious refusals to take an oath of citizenship or to pay taxes do not deny something to other citizens, while conscientious refusals to provide a public benefit such as civil marriage do. Contemporary cases of conscience are, in this sense, more delicate than those of the past. This thesis takes up the challenge of grappling with the clash of interests and rights in these cases. This clash is often comprised of fundamental concerns such as dignity and harm. At times, those concerns are at stake for both the person who invokes conscience and for the person who is adversely affected by the invocation. An example is the case of the patient who wants an abortion and the doctor who refuses on moral grounds to 6 provide one. These are difficult cases. That reality, however, does not diminish the need for guidance on how to reach just outcomes. This thesis strives to offer such guidance.
This thesis focuses on freedom of conscience within the Canadian legal landscape, but the legal protection of this human right in many places means that the conclusions are relevant elsewhere. The title of this thesis – “The Forgotten Fundamental: Freedom of Conscience in
Canada” – is inspired by the classification of freedom of conscience as one of the “fundamental freedoms” in the Canadian Charter of Rights and Freedoms, Canada’s constitutional bill of rights. Section 2(a) of the Charter guarantees, in one clause, “freedom of conscience and religion”.2 The placement of conscience and religion in the same provision is the norm in major bills of rights: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights follow this form. Freedom of religion has been studied and litigated to a far greater extent than freedom of conscience.
Freedom of conscience has, at best, been a “silent partner” to religious freedom.3
In recent years, calls for freedom of conscience to stand on its own two feet have steadily increased. Among other reasons, these calls may stem from increased secularization and decreased religiosity in Western societies combined with legal and policy changes or proposals that engage conscience more immediately than religion. There also seems to be a growing awareness that freedom of conscience has been largely forgotten or blended into freedom of religion. In Canada, this neglect is remarkable given what the Supreme Court of Canada stated in its first decision on s. 2(a) of the Charter. In Big M Drug Mart (1985), the Court affirmed the relationship between “respect for individual conscience and the valuation of human dignity” and
2 Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 3 Richard Haigh & Peter Bowal, “Whistleblowing and Freedom of Conscience: Towards a New Legal Analysis” (2012) 35:1 Dal LJ 89 at 91. 7 recognized that an “emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition.”4 One would have expected, at the time of this decision, that freedom of conscience would play a major role in Charter jurisprudence, but the reality has been anything but that. These statements of the Court on conscience – along with the invisibility of freedom of conscience in subsequent jurisprudence – inspired this thesis. It is at the same time another call for freedom of conscience to assume a meaningful role in human rights discourse and a modest attempt to answer that call. At its essence, this thesis responds to three questions. First, what is the substance of freedom of conscience? Second, why protect that substance in a bill of rights? Third, when can the state limit freedom of conscience?
Theoretical Framework and Methodology
As a first step, I attempt to answer these questions with theoretical proposals. Given the general neglect of freedom of conscience, starting with a theoretical account of this human right strikes me as appropriate. After building the theory, I apply it to current sites of controversy for freedom of conscience. In my view, the use of varied sources on conscience in this thesis is fitting given that freedom of conscience, compared to many other human rights, currently sits at theoretical ground zero. This status also serves as the rationale for my choice to build and apply a theory of freedom of conscience instead of performing empirical research. The abundance of scholarship on conscience facilitates this initial focus on theory.
In this thesis, I draw upon a wide range of sources: legal, legal history, philosophy, psychology, journalism, literature, and biographies. Legal sources – primarily Canadian but also non-Canadian – include cases, legislation, bills of rights, the drafting history of the Charter,
4 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346, 18 DLR (4th) 321. 8 monographs, and journal articles (including medical-legal and philosophy of law). Legal history sources, philosophy sources, and psychology sources include monographs and journal articles.
Journalism sources include media reports implicating freedom of conscience, particularly reports with statements by persons invoking conscience and persons affected by these invocations.
Literature sources include plays, novels, and Shakespeare. Biographical sources include testimonies of persons who faced crises of conscience and of persons who were adversely affected by the conscientious acts of others.
I use these sources as follows to answer the three questions that animate this thesis. The first question concerns the substance of freedom of conscience. The minimal consideration of freedom of conscience in human rights discourse translates into minimal (but not zero) assistance from legal and legal history sources on the substance of freedom of conscience. This reality calls for reference to philosophical and historical sources on the nature of conscience. These sources reveal a stable consensus that conscience concerns the application of moral knowledge to activity, such that the freedom to act on that knowledge comprises the substance of freedom of conscience. Philosophical and historical sources also assist with the second question: Why protect the substance of freedom of conscience in a bill of rights? In revealing the essence of conscience to be the moral compass of individuals, these sources gesture to why the freedom to follow that compass is valuable: it safeguards integrity and identity. Sources from psychology, journalism, biographies, and literature that detail the personal consequences of ignoring that compass also spotlight these values as the normative reasons for freedom of conscience. The third question – When may the state limit freedom of conscience? – is, owing to its predominantly legal nature, tackled primarily through reference to legal sources that consider limits on human rights. 9
This thesis proceeds within a theoretical framework animated by Aristotelianism and
Thomism – in short, Neo-Aristotelianism. Aristotle, particularly in relation to ethics, argues that the “good life” features higher and lower pursuits. Among the higher pursuits is the virtuous life, the core of which is moral conduct. Aristotle also viewed the virtuous life as a matter of practice: living virtuously rather than simply knowing virtue. Thomas Aquinas, building on Aristotle, views conscience as the application of moral knowledge to activity – as a key pathway to living virtue.
Aquinas, like Aristotle, emphasizes “practice makes perfect” when it comes to virtuous conduct.
Aquinas concluded that every human being has a conscience, and that conscience is about action.
Thomism considers it necessary, as a matter of human dignity and flourishing, that individuals be free to live in accordance with moral knowledge – that individuals be free, in other words, to live conscientiously. The Aristotelian and Thomistic aspects of the theoretical framework for this thesis come to the surface especially in the chapters on the substance of freedom of conscience, the values that freedom of conscience protects, and the limitation of this freedom by the state.
I have chosen these two schools of thought as a theoretical framework because it is arguably impossible to divorce conscience from morality and notions of right and wrong or good and evil. It is also seemingly impossible to conceptualize conscience without reference to action.
These elements of the theoretical framework inform both what freedom of conscience protects
(moral judgments) and who freedom of conscience protects (everyone, regardless of religious belief or unbelief). Interpreting freedom of conscience to protect only non-religious persons overlooks the conscientiousness of certain beliefs inspired by religious formation (and vice versa).
The non-religious person may share a conscientious belief with a religious person, as in the case of the Mennonite and the secular pacifist on the immorality of bearing arms. 10
The Aristotelian and Thomistic dimensions of the theoretical framework account for the reality that religious and non-religious persons can share the same moral judgment – they may simply have arrived at that judgment by different paths. In some cases, they may profess the same moral judgment for essentially the same reasons, even though one person received that moral knowledge through religious formation and the other did not. Aquinas believed in God, but does not seem to consider knowledge of God necessary to live conscientiously. Aquinas situates conscience in the rational dimension of the human person. Divine assistance is not a prerequisite for following conscience. The rational nature of conscience suggests that convictions of conscience, whether formed by religious or non-religious sources, can be grasped by reason.
Reasons for the Neglect of Freedom of Conscience
Claims based on conscience have historically arisen in a range of consequential settings.
Wartime conscription provokes conscientious objection to military service. Claims that conscience exempts persons from duties imposed on them by law or by their work arise elsewhere, as in the case of the pacifist who refuses to pay taxes that fund the military.
Expansion of marriage to same-sex couples sparked disputes that implicate conscience, such as officials who refuse to issue marriage licenses or bakers who refuse to make wedding cakes.
Alerting the public to abuses of power by businesses or governments – whistleblowing – has been theorized as a matter of conscience.5 Legal claims based on conscience have also appeared in unexpected contexts. To date, the only court case in Canada that has been decided solely on the basis of freedom of conscience involved a prisoner’s request for a vegetarian diet because of his moral opposition to eating meat.6 It is stunning that freedom of conscience has been
5 Haigh & Bowal, supra note 3. 6 Maurice v Canada (Attorney General), 2002 FCT 69, [2002] FCJ No 72. 11 universally neglected. It is not the case that certain jurisdictions have paid more attention to freedom of conscience than others. With respect to this human right, there has been a global silence. Apart from the deliberate choice of lawyers and litigants to not advance claims under freedom of conscience, at least three other reasons may explain this silence.
First, the archetype for rights related to conscience is the conscientious objector to military service. There is a long history of persons who have resisted, on moral grounds, to take part in armed conflict. A man named Maximilianus is considered the first known conscientious objector. He was conscripted into the army of the Roman Empire in the year 295, but cited his religious convictions as precluding him from bearing arms. Maximilianus was executed for his refusal to fight.7 Conscientious objection to military service has persisted over the centuries. In recent decades, bodies such as the United Nations Human Rights Committee have recognized a right to conscientious objection to bearing arms within the guarantee of “freedom of thought, conscience and religion” in Article 18(1) of the UDHR.8 It may be that conscientious objection to military service has come to be intuitively considered by many as encapsulating most of the substance of freedom of conscience, if not all of it.
The second reason for the universal neglect of freedom of conscience may relate to the fact that claims which are rooted in conscience are often been made by religionists. This trend even applies to conscientious objection to military service, the textbook freedom of conscience case. Maximilianus grounded his conscientious objection to military service in his faith. The instinct to associate religion with conscience, though understandable, has seemingly cultivated a
7 UN Office of the High Commissioner for Human Rights, Conscientious Objection to Military Service (New York and Geneva: United Nations, 2012) at 2. 8 UN Human Rights Committee, Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea, Comm Nos 1321/2004 and 1322/2004, (2006) 14 IHRR 389 (3 November 2006).
12 judicial and legislative instinct to handle claims of conscience under freedom of religion – even where, as in the case of conscientious objection to military service, conscience is arguably more immediately at stake than religion. The scarcity of lawsuits based on conscience in which the claimant is non-religious has likely reinforced this instinct. In short, cases of religious conscience
– cases in which claimants assert a violation of freedom of conscience as it has been formed by their religious tradition – are decided under freedom of religion, not freedom of conscience.
A third contributing factor to the neglect of freedom of conscience may be the view that positive law reflects the collective conscience of a society. As support for absolute moral truth has waned and support for moral relativism has grown, it may be that the law has assumed a greater latitude in the eyes of citizens to impart what is good and true. This shift, if it is occurring, has certain consequences when individual moral compasses clash with what the law requires. If assisted death – dying with dignity – is a moral imperative, the argument will arise that persons who deem this procedure immoral should not be allowed to work in professional fields that provide it. If same-sex marriage – marriage equality – is a moral achievement, it may be easier to demonstrate that supporters of traditional marriage should not be allowed to manifest their belief on marriage when they provide services to the public. There are other arguments as to why accommodating moral opposition to assisted death and same-sex marriage may be unjust, but the influence of law on culture – and what may be a growing tendency to view the law as our public conscience – may be contributing to the invisibility of freedom of (private) conscience.
It might be thought that recourse to freedom of conscience could increase the chance of victory in lawsuits that have up to now been litigated under freedom of religion.9 This idea, while not serving as a motivation for this thesis, raises important considerations. If legislatures, courts,
9 Rex Ahdar, “Is Freedom of Conscience Superior to Freedom of Religion?” (2018) 7 Oxford JL & Religion 124- 142. 13 or employers more readily accommodate secular conscientious objection to abortion than religious conscientious objection to abortion (or vice versa), this should be of concern given that the moral bottom line may be the same for both claimants. Much recent scholarship questions the justification for protecting religious freedom in bills of rights and for tolerating the manifestation of religious belief in the public square.10 If certain of these manifestations are more properly categorized as manifestations of conscience, does the level of sympathy for the claimant change?
If so, what does this phenomenon teach us?
Carving out a role for freedom of conscience that is distinct from religious freedom has the potential to reveal unexpected sites of commonality between religionists and non-religionists
– as well as between persons of different religions. This sort of common ground only increases the prospect of solidarity between individuals and groups that may think of themselves as holding little in common on fundamental issues. It seems fair to suggest that, in most Western societies, many non-religious persons continue to hold a number of traditional moral convictions that are usually associated with religious persons. For example, a significant number of physicians in Canada are morally uncomfortable with assisted death.11 Bearing in mind current levels of religiosity in Canada, it can be stated with some confidence that many of these physicians are non-religious.12 Public discourse and debate on hot-button issues often portrays religious and non-religious persons as categorically opposed. Shining a light on freedom of conscience may reveal that this portrayal of the religious-irreligious divide is not so cut and dry.
10 See, for example, Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2012). 11 In a poll taken by the Canadian Medical Association (a national association of physicians) at the moment when physician-assisted death became legal in Canada in 2016, only 25% of respondents stated that they would be willing to provide the procedure: Canadian Medical Association, “Results of the CMA Member Survey on Medical Assistance in Dying, June 2016”, online: < https://www.cma.ca/Assets/assets-library/document/en/advocacy/maid- survey-summary-june-2016-english.pdf>. 12 In a poll taken in 2017, 40% of Canadians described themselves as either non-believers or spiritually uncertain: Angus Reid Institute, “A spectrum of spirituality: Canadians keep the faith to varying degrees, but few reject it entirely” (13 April 2017), online:
The Overarching Claim
Fundamentally, this thesis contends that freedom of conscience deserves robust protection because of what it protects and why it is protected. This human right, in other words, should not be limited without compelling justification because of its substance and rationale. I propose that the substance of this human right is living in alignment with our moral judgments, regardless of where those judgments come from. Why we protect this freedom boils down to the idea that conscience touches on core moral commitments that sustain our identity and integrity.
Conscience, in short, preserves who I am and what I stand for in a fundamental sense. Freedom of conscience enables individuals to lead lives that are coherent narratives – and the stakes can be high when that freedom is jeopardized. Professionals who find themselves in a crisis of conscience have an unattractive choice to make: abandon a cherished career or violate these core commitments. It is not outlandish to suggest that the latter option will entail significant distress.
The impetus for this thesis is not simply the neglect of freedom of conscience for so long and in so many jurisdictions. This thesis is timely and poised to make an important contribution to how freedom of conscience should function in diverse liberal democracies. Freedom of conscience may soon have a defining legal moment. Legal disputes over conscientious objection in healthcare are the likeliest candidate to deliver that moment. There is litigation underway in
Canada in relation to a policy that requires doctors in the province of Ontario to refer their patients to another doctor where they conscientiously refuse to provide a lawful healthcare service. This case seems destined for the Supreme Court of Canada. This complicated and delicate public policy issue, like others, cannot lead to reconciliation if we fail to grasp what freedom of conscience is and why it appears in bills of rights. This thesis includes a chapter on conscientious objection by physicians. 15
In the leading Canadian case on abortion, Justice Bertha Wilson noted that the “basic theory underlying the Charter” is that the state will “respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.”13 The state must, as much as possible, remain neutral in matters of conscience and religion.14 The statements of Justice Wilson related to women who request an abortion, but surely the principle she articulated applies to both sides of this issue and others. This principle poses the challenge of identifying the boundary between when it is and is not legitimate for the state to subordinate individual choice to a particular view of the good. This thesis takes up this challenge with respect to choices that flow from conscience.
There is a spectrum of how the state might interfere with freedom of conscience. On one end is state action that merely bans activity which obstructs the pursuit of a moral conviction.15
A person who considers it immoral to kill animals for food and proceeds to burn down a slaughterhouse may be following his conscience, but laws that prohibit trespass and damage to property – and thereby interfere with his ability to live conscientiously – do not force him to violate his conscience. Rather, these laws merely prohibit him from following his conscience.
The situation would be different, for example, if the state were to compel through legislation all citizens to eat meat or pay a fine. This is the other end of the spectrum. In that case, the state forces the citizen to violate her conscience or suffer a penalty. State action that compels a citizen to do something that violates her conscience or face some sort of adverse consequence is a severe breach of freedom of conscience. The bureaucrat that is ordered to kill or be killed is a classic example. The person who is jailed simply for expressing a belief that is
13 R v Morgentaler, [1988] 1 SCR 30 at 166, 44 DLR (4th) 385. 14 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3. 15 See Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013) ch 7. 16 unpopular or unwelcome in the eyes of a government is a modern example. Today, Amnesty
International identifies such persons as “prisoners of conscience.”16
In liberal democracies such as Canada, these scenarios – in which freedom of conscience is profoundly violated – are not seen. Today, coercion by the state to violate conscience is subtler. Do X or forfeit access to a government program that is funded by taxpayers. Endorse a certain belief through action or possibly lose your job. The stakes are lower than life or death, but they are still high. Choosing to follow conscience in these cases can lead to fines, exclusion from a profession, or unequal access to taxpayer-funded government programs. Conversely, choosing to violate conscience will almost inevitably lead to some degree of self-harm.
The Roadmap
Chapter 1 studies the legal history of freedom of conscience in Canada, especially before the Charter arrived in 1982. This chapter relies on legislation, Hansard, secondary historical sources, the drafting history of the Charter, Canadian jurisprudence, and legal scholarship in the early years of the Charter. This historical survey explores whether the pre-Charter history of freedom of conscience in Canada reveals anything about freedom of conscience in the Charter.
The Canadian experience with freedom of conscience before the arrival of the Charter is dominated by freedom of religious conscience. This form of freedom of conscience appeared most prominently in the context of conscientious objection to military service during World
Wars I and II, when the Canadian government granted statutory exemptions from military service to Christian denominations that profess pacifism as a core tenet of their faith. Freedom of conscience as a freestanding, individualized human right standing apart from freedom of religion
16 Amnesty International (Canada), “Prisoner of Conscience,” (5 October 2018), online:
Trudeau was concerned by the litigation experience under the Canadian Bill of Rights of 1960 (a federal statute and un-entrenched bill of rights), which only guaranteed freedom of religion.
Trudeau believed that a failure to include freedom of conscience in the Charter would mean that the conscientious convictions of non-religious persons would not be protected.
Chapter 2 seeks to identify the most persuasive interpretation of what freedom of conscience protects. This chapter uses a variety of sources – philosophical, jurisprudential, literary, and journalistic – to build that interpretation. I canvas the three major interpretations of this human right: (i) freedom of religious conscience, (ii) freedom of secular conscience, and (iii) freedom of any conscience. I endorse the third interpretation based on the ordinary and historical understanding of the word “conscience” and the rules of statutory interpretation. Practically, this means that freedom of conscience is engaged where a person seeks to manifest a moral judgment, regardless of whether the judgment stems from religion or irreligion. As for the distinction between freedom of conscience and freedom of religion, I propose that conscience protects the freedom to manifest moral judgments whereas religious freedom is concerned with practices arising from faith – rituals, worship, and religious devotion – and the beliefs that underpin these practices. Taking Christianity as an example, freedom of conscience captures the moral teaching of this religious tradition (eg, “Thou shall not kill” in the Ten Commandments), while freedom of religion captures its theological teaching (eg, Jesus Christ is the Son of God).
Chapter 3 shifts from what freedom of conscience protects to why freedom of conscience is protected in bills of rights. I believe it is helpful, in attempting to identify the 18 substance of a human right and when it may be limited, to identify the values or interests that the human right safeguards. If freedom of conscience protects the freedom to live in alignment with moral judgments, why do we care about the freedom to be so aligned? The answer, in my view, is the values of integrity and identity. Living in alignment with our moral judgments sustains and develops integrity and identity, while misalignment leads to the opposite result. A person who violates her conscience injures her integrity and identity, and suffers harm. The experience of betraying our moral commitments meaningfully and materially differs from betraying our preferences and tastes. The former can cause psychological harm, erode one’s sense of self- worth, and injure dignity. This chapter draws upon philosophical treatments of identity and integrity, psychiatric and psychological scholarship on the harm that flows from violating conscience, and fictional and non-fictional examples of how betraying conscience is harmful.
Chapter 4 investigates the kind of state action that amounts to a limit on freedom of conscience and the circumstances in which a limit on this human right is justified. In Canada, citizens must prove that the state has limited a Charter right or freedom. If the test for religious freedom is adapted to freedom of conscience (and this seems likely, given that these two freedoms reside in the same Charter provision), the first question will be whether the state has interfered with a person’s sincerely held moral conviction in a more than trivial or insubstantial manner. As in religious freedom cases, the test for whether conscience is engaged will likely be subjective: just as courts will not be arbiters of religious dogma, they will not be arbiters of moral truth. Where a citizen demonstrates that the state has limited her freedom of conscience, the state must justify the limit. Charter rights and freedoms are subject to “reasonable” limits that are “demonstrably justified in a free and democratic society.”17 How does this standard
17 Charter, supra note 2 at s 1. 19 apply when the state seeks to justify a limit on freedom of conscience? I identify and unpack three principles that, in my view, justify limits on freedom of conscience: where the exercise of this freedom causes harm, injury to human dignity, or undue hardship for others.
The two final chapters – Chapters 5 and 6 – apply the proposals from previous chapters to current sites of controversy for conscience. Chapter 5 grapples with conscientious objection in healthcare. In general, there is a relatively stable consensus (for the moment) that healthcare workers should be allowed to conscientiously refuse to carry out lawful healthcare services that they deem immoral. Today, referrals constitute the most contested issue related to conscientious objection in healthcare: when a doctor conscientiously refuses to perform a procedure or prescribe a drug, must she refer the patient to a willing doctor? This issue is being litigated in
Canada now. The public body that regulates physicians in Ontario has made referrals obligatory in that province. Two courts have ruled that this policy limits the religious freedom of doctors who conscientiously object to certain healthcare services, but that the limit is justified.18 This case may reach the Supreme Court. If it does, the Court will have an opportunity to define and explain freedom of conscience for the first time.
Conscientious objection in healthcare also raises the issue of whether a collision of rights is on the table – in other words, whether and to what extent bills of rights guarantee the healthcare services that often attract conscientious objection. This case study also considers whether conscientious objection in healthcare is discriminatory (on the basis of sex in relation to abortion or on the basis of disability in relation to assisted death). This case study draws on scholarship in law, medicine, philosophy, and bioethics – along with media reports, case law, legislation, and policy documents from several liberal democracies.
18 The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579, aff’d 2019 ONCA 393. 20
Chapter 6 considers two kinds of conscientious refusals to be involved in same-sex marriage on account of a moral judgment that marriage is uniquely the spousal union between one man and one woman. The first concerns individuals who solemnize civil marriages on behalf of the state, but who refuse to solemnize civil marriages for same-sex couples. In Canada, these officials are often called marriage commissioners. The second concerns individuals who refuse to provide wedding services to same-sex couples, such as bakers, photographers, and florists.
Both kinds of conscientious refusals have generated litigation. Cases of objecting marriage commissioners led to several lawsuits in Canada after the arrival of same-sex marriage in 2005
(one of which is still ongoing). Challenges to refusals to provide wedding services to same-sex couples have reached the Supreme Courts of the United States and of the United Kingdom. There is an ongoing lawsuit in the United States concerning a florist who refused to provide flowers to a same-sex couple for their wedding. As in the case study on healthcare, the issue of discrimination is also engaged by this case study – here, on the basis of sexual orientation. This case study draws on jurisprudence produced by these and related disputes as well as scholarship on the topic of conscientious objection in respect of same-sex marriage.
Significance and Implications
This thesis tackles critical but neglected questions affecting diverse societies today. What activity does freedom of conscience protect? Why protect this activity in a bill of rights? When can governments limit this freedom? Can governments pressure citizens to adopt beliefs against their conscience? How does freedom of conscience differ from religious freedom?
All major bills of rights enshrine freedom of conscience. Despite being the first human right listed in the Charter, freedom of conscience has been near invisible during the more than
35 years that this bill of rights has existed. This thesis vitalizes this long forgotten – and now 21 suddenly relevant – human right. I propose a meaningful modern role for it, valuable and distinct from religious freedom, in diverse liberal democracies such as Canada. The role that I propose for this human right reflects the universality of conscience. If everyone has a conscience, it stands to reason that everyone is entitled to freedom of conscience.
This thesis has the potential to influence early considerations of freedom of conscience by courts in Canada and abroad. At least in Canada, a defining moment for freedom of conscience may transpire with the outcome of the litigation in Ontario on conscientious objection in healthcare. Such initial efforts by courts to grapple with this freedom – assuming that courts grapple with freedom of conscience rather than pivot to freedom of religion – are only the beginning of a long, arduous journey of understanding the implications of this human right in various contexts. My research on freedom of conscience and that of other scholars will shift to a higher and more important gear once courts give life to this human right.
Disputes that implicate freedom of conscience often make the headlines or reach the courtroom because they feature a clash of worldviews between the person invoking conscience and the person affected by that invocation over issues such as harm and dignity. Faced with such fundamental disagreements between citizens, the usual approach of the state in a diverse society is to allow a diversity of views rather than to pick sides. The exercise of freedom of conscience seems to put pressure on this approach. Legal disputes over conscience test the boundaries of the commitment of a “free and democratic society” to accommodate difference – even when most of us passionately oppose the difference that seeks accommodation. When must private conscience yield to public authority? This question captures the heart of the matter.
22
Chapter 1 – Freedom of Conscience in Canada: Legal History Introduction...... 22
I. Freedom of Conscience before the Charter ...... 24 World War I ...... 26 World War II ...... 30 Legislation ...... 36 Jurisprudence ...... 38 II. Freedom of Conscience in the Charter ...... 43 Drafting the Charter ...... 43 Early Charter Scholarship ...... 47 Jurisprudence – Supreme Court of Canada ...... 49 Jurisprudence – Other Canadian Courts ...... 55 Conclusion ...... 59
Introduction What is the legal history of freedom of conscience in Canada prior to the adoption of the
Canadian Charter of Rights and Freedoms?1 Why was this freedom included in the Charter? How has this Charter freedom been interpreted? This chapter seeks answers to these questions.
The impetus for this thesis is the general neglect of freedom of conscience in Canada and abroad as well as an inclination that this human right merits robust protection because of what it protects and the personal consequences of limiting it. This thesis, which focuses on the Canadian legal landscape, aims to (i) define “freedom of conscience” in s. 2(a) of the Charter and (ii) provide guidance on how the Canadian state may limit this freedom. This chapter contributes to the first objective: it seeks to identify what this Charter freedom protects, through a legal historical lens.
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 23
Canadian legal history provides two competing narratives as to why freedom of conscience appears in the Charter. The first narrative essentially spans the pre-Charter legal history of freedom of conscience: the close relationship between religion and conscience. The legal history prior to the Charter mainly (though not exclusively) frames freedom of conscience as religious conscience, not encompassing secular conscientious beliefs. This link reveals itself from the first appearance of freedom of conscience in Canada in the form of legislated rights to conscientious objection for religious groups in relation to military service. This narrative also appears in the
Charter era in the first Supreme Court of Canada decision on s. 2(a). This narrative, standing on its own, renders it unsurprising that the Charter guarantees, in one clause, “freedom of conscience and religion”. The second narrative is that freedom of conscience protects only non-religious persons. This narrative begins with the commentary on the first draft of the Charter, reappears in early Charter scholarship, and also enjoys some traction in the s. 2(a) jurisprudence. Although this narrative proposes that freedom of conscience protects non-religious persons, it is not clear what it is in relation to these persons that the freedom actually protects. If it protects their conscientious beliefs, what are the characteristics of these beliefs?
This chapter has two Parts. Part I explores the legal history of freedom of conscience in
Canada before the Charter arrived in 1982. Reference is made to legislation, Hansard, secondary historical sources, and Canadian jurisprudence. Part II explores how and why freedom of conscience was included in the Charter and how it has been interpreted after 1982. Reference is made to the drafting history of the Charter, early Charter scholarship, and Charter jurisprudence.
In short, Canadian legal history does not clarify what freedom of conscience in s. 2(a) protects. The two narratives yield incompatible interpretations of this freedom: one says the freedom protects only religious persons and the other says it protects only non-religious persons. 24
There is, however, a third interpretation: freedom of conscience protects the conscientious beliefs of all persons. This interpretation barely appears in the legal history of freedom of conscience in
Canada. In the next chapter, I argue that this interpretation should be adopted.
I. Freedom of Conscience before the Charter
In the 18th and 19th centuries, provincial and federal governments in Canada provided statutory exemptions to military service to incentivize immigration of pacifist Christian denominations to Canada. 2 In 1793 the Assembly of Upper Canada – present-day Ontario – enacted the Militia Act, which provided that “persons called Quakers, Mennonites and Tunkers
(Brethren of Christ) who from certain scruples of conscience, decline bearing arms, shall not be compelled to serve” in the militia.3 Janet Epp-Buckingham suggests this clause was intended to encourage members of these denominations in the United States to immigrate to Canada.4 The legislation required proof of denominational membership (signed by a religious authority) and payment of a tax, but the key requirement is an objection to bearing arms based on a conviction of conscience. Epp-Buckingham also notes the problems created by the legislation for the denominations it sought to benefit. Denominational membership was problematic for Mennonites
(males cannot become members until they are 21) and Quakers could not pay the tax for religious reasons. In 1810, an amendment fixed the age issue for Mennonites. Quakers and Mennonites relied on the 1793 statute to avoid military service during the War of 1812.5
2 Janet Epp-Buckingham, Fighting Over God: A Legal and Political History of Religious Freedom in Canada (Montreal: McGill-Queen’s University Press, 2014) at 144-147. 3 Militia Act, SUC 1793, c 1 (33 Geo III), s 3. 4 Epp-Buckingham, supra note 2 at 144. 5 Ibid. 25
Freedom of conscience next appeared in 1868, one year after Confederation, when the
Canadian government enacted a federal Militia Act. The statute contained a “conscience clause”, though the word “conscience” is absent. While the 1793 statute hinged on “scruples of conscience”, the 1868 statute emphasized religious denomination. This suggests that the 1868 statute was more concerned with collective religious identity than individual conscientious belief.
The statute exempted from military service “any person bearing a certificate from the society of
Quakers, Mennonites, or Tunkers or any religious denomination, otherwise subject to military duty, but who, from the doctrines of his religion is averse to bearing arms”, subject to “such conditions and under such regulations” as Cabinet may impose.6
In 1872, through an Order in Council, the Canadian government promised certain
Mennonites in Russia that they would be “absolutely free and exempted by the law of Canada, from military duty or service, either in time of peace or war.”7 In 1873, the Canadian government granted these Mennonites eight townships in Manitoba and an “entire exemption from any military service”.8 In 1877, Lord Dufferin – the Governor General of Canada – visited the new immigrants in Manitoba and in a speech declared that the “battle to which we invite you is the battle against the wilderness … You will not be required to shed human blood.”9 In 1898 and 1899, Canada promised immunity from military service to Doukhobors10 and Hutterites11 respectively.
6 Militia Act, SC 1868, c 40 (31 Vic), s 17(3). 7 PC 1872-1043 B, (1872) RG2, Privy Council Office, Series A-1-a, Vol 300, Reel C-3301, reprinted in Adolf Ens, Subjects Or Citizens?: The Mennonite Experience in Canada, 1870-1925 (Ottawa: University of Ottawa Press, 1994) at 239. 8 PC 1873-957, (1873) RG2, Privy Council Office, Series A-1-a, Vol 313, Reel C-3305. 9 David A Lyon & Marguerite Van Die, eds, Rethinking Church, State, and Modernity: Canada Between Europe and the USA (Toronto: University of Toronto Press, 2000) at 81. 10 PC 1898-2747, (1898) RG2, Privy Council Office, Series A-1-a, Vol 770, Reel C-3670. 11 PC 1899-1676, (1899) RG2, Privy Council Office, Series A-1-a, Vol 784, Reel C-3773.
26
By the start of the 20th century, Canadian governments had promised immunity from military service on the basis of religious conscience to the so-called “historic peace churches”:
Mennonites, Doukhobors, Tunkers, Hutterites, and Quakers. These promises were not so much inspired by respect for freedom of conscience as a human right. They were primarily made, rather, to incentivize immigration. These exemptions, which were invoked during the War of 1812, would be relied on again – and expanded – during the two World Wars of the 20th century.
World War I
The rubber hit the road for conscientious objection in Canada when the federal government imposed conscription during World War I. The Military Service Act, 12 which came into force on
August 29, 1917, made all male British subjects between the ages of 20 and 45 liable for military service “for the duration of the present war and of demobilization after the conclusion of the war.”13 The Orders in Council of 1873 and 1898 concerning Mennonites and Doukhobors are listed in a Schedule to the MSA, such that the MSA did not apply to persons covered by them.14 Curiously, the exemption did not extend to the 1899 Order in Council concerning Hutterites. Prime Minister
Robert Borden identified the promises made by Canada to these immigrants as the rationale for these exemptions: “It is absolutely clear that the faith of a country thus pledged must be kept.”15
Amy Shaw argues that, with respect to conscription during World War I, the Canadian government
12 Military Service Act, SC 1917, c 19 (7-8 George V) [MSA]. 13 Ibid at s 2, 3. 14 Ibid, Schedule of Exceptions. The Schedule also exempted “[c]lergy, including members of any recognized order of an exclusively religious character, and ministers of all religious denominations existing in Canada at the date of the passing of this Act.” 15 Canada, Parliament, House of Commons Debates, 12-7, Vol 3 (11 June 1917) at 2193 (Rt Hon Robert L Borden). 27 had to balance competing obligations: a duty to wage war and a duty to respect the promises to the historic peace churches, as well as “the tradition of liberal individuality inherited from Britain.”16
Those men not covered by the Schedule but who wished to avoid military service for conscientious reasons could apply for an exemption. Such exemptions were available for any man who “conscientiously objects to the undertaking of combatant service and is prohibited from doing so by the tenets and articles of faith, in effect on the sixth day of July, 1917, of any organized religious denomination existing and well recognized in Canada at such date, and to which he in good faith belongs”.17 In practice, this provision “was restricted to members of well-recognized religious denominations with clear proscriptions against military service.”18 As Amy Shaw writes,
“what carried most weight was not an individual’s personal objection but that of the church to which he belonged; respect was accorded to the dictates of his recognized, established denomination rather than his own conscience.”19 The text of the provision reflects this statement; the hook is membership in an “organized religious denomination existing and well recognized in
Canada” that professes pacifism. The notion of respect for individual freedom of conscience was not a matter of concern for the Canadian government at the time. The “conscience clause” in the
MSA was primarily “a means of keeping these promises” to the historic peace churches “rather than any real concession to the right of individual freedom of conscience.”20
To process conscientious objection applications, the MSA created registrars and local tribunals in each Canadian province.21 Each local tribunal had two members: one chosen by the
16 Amy Shaw, Crisis of Conscience: Conscientious Objection in Canada during the First World War (Vancouver: UBC Press, 2009) at 6. 17 MSA, supra note 12 at s 11(1)(f). 18 Shaw, supra note 16 at 13. 19 Ibid. 20 Ibid at 11. 21 MSA, supra note 12 at s 5, 6. 28 county judge in the given district and one chosen by a joint committee of Parliament.22 A total of
1,395 local tribunals were established.23 The MSA allowed appeals of local tribunal decisions to be heard by appeal tribunals in each province24 – of which there were 19525 – and ultimately by a
Central Appeal Judge chosen from among the judges of the Supreme Court of Canada.26
The MSA created two tiers of conscientious objection. Persons captured by the Orders in
Council of 1873 and 1898 were exempted via the Schedule to the MSA from all military service – combatant and non-combatant – because of the text of those instruments, while persons not captured by these Orders in Council but who obtained an exemption certificate under the MSA were exempted only from combatant service. The MSA stipulated that if a certificate was “granted solely on conscientious grounds”, it “shall state that such exemption is from combatant service only.”27 Donald Eberle identifies a peculiarity here: other pacifists who immigrated to Canada with statutory promises of exemption from all military service – such as Hutterites – were not granted the same exemption by the MSA as Mennonites and Doukhobors.28
Certain religious groups in Canada experienced particular difficulty in obtaining exemptions. Provincial registrars relied on the rulings of the Central Appeal Judge for guidance on which denominations were eligible for exemptions – that is, which denominations were
“organized”, “existing”, “well recognized in Canada”, and professed pacifism as a core tenet of faith as of July 6th, 1917. The Central Appeal Judge during World War I was Supreme Court of
22 Ibid at s 6(3). In the Yukon, one of the members of each local tribunal was appointed by the judge of the Territorial Court or the person appointed by statute to act in that judge’s place. In the Northwest Territories, the Commissioner of the Royal Northwest Mounted Police acted as the appointing authority. 23 Shaw, supra note 16 at 35. 24 MSA, supra note 12 at s 7. 25 Shaw, supra note 16 at 35. 26 MSA, supra note 12 at s 8. 27 Ibid at s 11(2)(a). 28 Donald C Eberle, Conscription Policy, Citizenship and Religious Conscientious Objectors in the United States and Canada During World War One (PhD Thesis, Bowling Green State University, 2013) [unpublished] at 50. 29
Canada Justice – and later Chief Justice – Lyman Poore Duff. He ruled that Mennonites, Tunkers,
Christadelphians, Seventh-day Adventists, and Quakers qualified for exemptions but that
Plymouth Brethren and Pentecostal Assemblies did not because pacifism was not central to these denominations.29 He measured centrality by whether “acceptance of military service would mean expulsion for the individual concerned”.30 Janet Epp-Buckingham notes that Jehovah’s Witnesses were also ruled ineligible; in fact, they were “jailed and mistreated, some to the point of requiring hospitalization.”31 Thomas Socknat describes public protests inspired by the plight of Witnesses, which led the Canadian government to allow them to perform non-combatant military service.32
In general, conscientious objectors were viewed negatively by the Canadian public: “they were an unpopular, harassed, and often quite badly treated minority”.33 The Wartime Elections Act of 1917 denied the vote to conscientious objectors (and precluded conscientious objection for persons who voted).34 Wilfrid Laurier, the Leader of the Opposition in 1917 and an opponent of conscription, described this law as “a blot upon every instinct of justice, honesty and fair play” for taking the
“franchise from certain denominations whose members from ancient times in English history have been exempt from military service.”35
Even when the Canadian government cancelled most of the exemptions to conscription under the MSA in April 1918 due to a pressing need for soldiers, it did not cancel conscientious objection.36 Perhaps the government acknowledged the significance of conscience, or perhaps it
29 Shaw, supra note 16 at 31. 30 Ibid. 31 Epp-Buckingham, supra note 2 at 145. 32 Thomas P Socknat, Witness Against War: Pacifism in Canada, 1900-1945 (Toronto: University of Toronto Press, 1987) at 86. 33 Shaw, supra note 16 at 7. 34 Robynne R Healey, “Quakers and Mennonites and the Great War” in Gordon L Heath, ed, Canadian Churches and the First World War (Cambridge: Lutterworth Press, 2014) 218 at 232-233. 35 National Liberal Federation of Canada, Two Dark Blots of Shame: The Conservative Franchise Act of 1885 and the War-Time Elections Act of 1917 (Ottawa: Liberal Party of Canada, 1918) at 11. 36 Epp-Buckingham, supra note 2 at 145. 30 points to the practical reality that conscientious objectors would likely not perform military service even under compulsion of law. Still, at a desperate moment for the Canadian war effort, repealing conscientious objection was, for one reason or another, not an option.
The number of conscientious objectors in Canada during World War I is difficult to calculate because figures were not kept and many of the relevant records were destroyed after the
War.37 Amy Shaw estimates 26,000 men were eligible for conscientious objection,38 most of whom were Mennonites and Doukhobors.39 These denominations formed the overwhelming majority of conscientious objectors in Canada during the next World War.
World War II
At the start of World War II in 1939, Prime Minister Mackenzie King promised no conscription. The situation was different, however, after King’s re-election in March 1940 given
Germany’s military success to date and the threat to the United Kingdom. Later that year, Canada enacted the National Resources Mobilization Act.40 The NRMA empowered the federal government to mobilize a domestic or “home” force in Canada. Persons called up for this service were not required to serve abroad.41 An Order in Council in August 1940 established regulations pursuant to the NRMA stipulating that “unmarried men and widowers without child or children”
37 Shaw, supra note 16, at 9. At 15, Shaw relates that after World War I, Central Appeal Judge Duff burned tribunal records for purported reasons of national interest. He stated: “The papers of the local tribunals and appeal bodies in Quebec were full of hatred and bitterness and would have been a living menace to national unity.” E.L. Newcombe, another Supreme Court of Canada justice and chairman of the Military Service Council during the war, also burned records. In a 1921 letter, Newcombe justified this action as follows: “These files, I may say, were very numerous and bulky and were thought to be of no further use after the conclusion of peace.” 38 Ibid at 9-10. 39 Ibid at 12. 40 National Resources Mobilization Act, 1940, SC 1940, c 13 (4 George VI) [NRMA]. For a summary of the intricate regulatory framework that emerged in Canada during World War II to address conscientious objection, see Michael D Stevenson, Canada’s Greatest Wartime Muddle: National Selective Service and the Mobilization of Human Resources during World War II (Montreal: McGill-Queen’s University Press, 2001) at 17-36. 41 Ibid, s 3. 31 between the ages of 21 and 45 were required to undergo domestic military training42 (initially for thirty days,43 but in 1941 it was extended to four months44). A September 1940 Order in Council entitled Mennonites and Doukhobors who immigrated to Canada pursuant to the 1873 and 1898
Orders in Council (and their descendants who remained members of the denominations) to
“indefinite postponement of their military training.”45 A December 1940 Order in Council entitled any man “who claims that he conscientiously objects to bearing arms or undertaking combatant service” to indefinite postponement of military training if a religious official in charge of his denomination certifies (i) that the man belongs to that denomination and (ii) that he “has conscientious scruples against the bearing of arms.”46 The Order in Council also required
Mennonites and Doukhobors to report for a medical examination like all other males when their respective age-class was called up, and to report for military training unless a written application for an exemption was made within eight days of being called up.
These NRMA regulations established an administrative regime – part of which dealt with postponement of military training on conscientious grounds – that remained essentially in place throughout World War II. The regulations established thirteen Administrative Divisions in Canada, each headed by a Divisional Registrar who, using national registration information, chose which men to call up for training. Each Division had a National War Services Board composed of at least
42 National War Services Regulations, 1940 (Recruits), PC 1940-4185, (1940), C Gaz (Extra, 27 August 1940), Vol 74, No 23, 1-12. 43 PC 1940-4671, (1940) C Gaz (Extra, 13 September 1940), Vol 74, No 25, 1-2. 44 Reserve Army (Special) Regulations 1941, s, 8(f), PC 1941-1910 (1941), C Gaz (Extra, 24 March 1941), Vol 74, No 96, 7. 45 PC 1940-5155, (1940), reprinted in Canada, Privy Council Office, Proclamations and orders in Council passed under the authority of the War measures act, RSC (1927) c 206, Vol 3 (Ottawa: King’s Printer, 1941) 100. 46 PC 1940-7215, (1940) C Gaz (Extra, 2 January 1941), Vol 74, No 64, 1-2. 32 three members, with a judge as chair. The Boards handled applications for postponement of military service. Their decisions were “final and conclusive”.47
The December 1940 Order in Council stipulated that a Board “may”48 order a conscientious objector to perform non-combatant or alternative service in lieu of military training. Despite the discretionary language of the Order in Council, alternative service – such as “farming, reforestation projects, and fighting forest fires”49 – became standard practice for conscientious objectors starting in 1941.50 Four months was the initial requirement (the same amount of time required for military training by then), but in 1942 the term was extended to the duration of the War.51 In May 1943, the Ministry of Labour assumed control of the alternative service program, leading some conscientious objectors to take jobs in industries suffering from labour shortages during the War.52
Conscientious objectors also had to make contributions from their wages to the Red Cross.53
An interview in 2014 of Ray Crook by journalist-author Elinor Florence provides insight into the lives of conscientious objectors who performed alternative service.54 During the War, Ray lived on his family’s homestead in Kootenay National Park in British Columbia. He worked as a grader operator and a truck driver while his father, Charles Crook, supervised conscientious objectors performing alternative service at the Park. Charles Crook accepted this job with the federal government after the War began. The job involved supervising conscientious objectors at
47 National War Service Regulations, 1940 (Recruits), supra note 42 at s 8(3), reprinted in National War Service Regulations, 1940 (Recruits) (Consolidation 1941), PC 1941-1822, (1941), C Gaz (Extra, 18 March 1941), Vol 74, No 94. 48 PC 1940-7215, supra note 46 at s 18.A(1). 49 Epp-Buckingham, supra note 2 at 146. 50 Global Anabaptist Mennonite Encyclopedia Online, Alternative Service Work Camps (Canada), online
Ray recalled that the Mennonites were first to arrive. He described them as “nice people, very hard-working”; his father said “he had never worked with a bunch of finer young men in his life.”55 He also recalled meeting a German-Canadian conscientious objector who obtained an exemption based on his wish to not fight his people.56 The men were paid 50 cents per day (military pay was $1.30 per day) and given room and board, but they had to provide their own clothing. He described the accommodation as “fairly primitive, just bunkhouses covered with tar paper”.57 In the depths of winter, he said the men nearly froze. The food “wasn’t bad” according to Ray:
“Sometimes when I had to haul supplies into the camp, I sat down and ate with them.”58 The men received “occasional weekends off, and they got leave once or twice a year to go home and see their families.”59 Some were married with young families. They were forbidden to speak German.
They worked from sunrise to sunset all year, often with unsophisticated equipment. As a result of the federal government extending the term of alternative service for conscientious objectors in
1942 from four months to the duration of the War, men who arrived at the camps after the extension took effect remained there for years.
Jehovah’s Witnesses were the next denomination to arrive at Kootenay National Park for alternative service. Ray recalls that Witnesses resisted alternative service and were uncooperative.
His father Charles eventually quit his job of supervising conscientious objectors because of the
55 Florence, supra note 54. 56 This individual’s case is intriguing. It would seem that he received an exemption even though he was not a member of a pacifist Christian denomination and he professed a non-religious conscientious belief. While the denominational requirement eventually disappeared, the requirement that the nature of the objection be religious remained: see Robert SW Pollard, “Conscientious Objection in Great Britain and the Dominions” (1946) 28:3/4 J Comparative Legislation & Int L 72 at 76-79. 57 Florence, supra note 54. 58 Ibid. 59 Ibid. 34 work ethic of Witnesses under his charge. Witnesses did not give up preaching during their terms of alternative service. Ray said that when they got weekends off they “would fan out across the valley and hand out copies of The Watchtower” but, as Ray puts it, “I don’t think they made too many converts.”60 As for Hutterites, the third group of conscientious objectors at Kootenay
National Park, Ray simply described them as hard workers.
As for the treatment of conscientious objectors in the communities surrounding Kootenay
National Park, Ray does not remember any overt hostility – but they were criticized elsewhere. In nearby Banff, the local newspaper called them “conchies” and chided pacifism as “simply a cute method of saving their yellow hides.”61 Banff residents were furious that conscientious objectors had been taken to swim in a local hot pool in Upper Hot Springs during winter.
Ray’s father died in November 1945 – a few months after the War ended – when a falling rock struck him. He was buried on his homestead in Kootenay National Park. Conscientious objectors from a nearby camp dug his grave. The last site of alternative service in Canada was
Banff National Park. In July 1946, the last conscientious objector left the site.
Mackenzie King broke his promise that there would be no conscription in World War II after a national plebiscite in 1942 that favoured conscription. The plebiscite sparked a national unity crisis: Quebec heavily opposed conscription and the rest of Canada heavily favoured it.62
Foreseeing the crisis, King uttered a famous phrase during the plebiscite campaign: “Not necessarily conscription, but conscription if necessary.”63 After the plebiscite, the NRMA was amended to permit conscripts to be sent overseas for combat. It was not until late 1944 that
60 Ibid. 61 Ibid. 62 JL Granatstein & Richard Jones, “Conscription” (6 June 2002), Historica Canada: The Canadian Encyclopedia, online:
In addition to the conscription plebiscite, 1942 also witnessed the replacement of the regulations made pursuant to the NRMA in 1940 with the National Selective Service Mobilization
Regulations. 65 On conscientious objection, the new regulations removed the requirement for proof from a religious authority of membership in a pacifist denomination.66 They defined a
“conscientious objector” as a person “to whom a postponement order has been granted on the ground that he conscientiously objects, by reason of religious training and belief, to war in any form and to participation in combatant military service in which he might be required to take human life”.67 The regulations maintained the protection for Mennonites and Doukhobors who immigrated to Canada pursuant to the Orders in Council of 1873 and 1898 (as well as their descendants who remained in Canada as members of the denomination without interruption).68
Some scholars have suggested that conscientious objector status was extended to non-religious persons, but I have located no legislation or regulation that supports this suggestion.69
As was the case during World War I, Jehovah’s Witnesses experienced particular difficulty in obtaining exemptions to military service for conscientious reasons during World War II.
Witnesses claimed that an exemption from military service for “clergy” of a “religious denomination” applied to them because, they argued, all Witnesses are clergy (insofar that all
64 Ibid. 65 PC 1942-10924, (1942), reprinted in Canada, Privy Council Office, Canadian War Orders and Regulations, 1942 (Ottawa: King’s Printer, 1943) Vol 11, 573-593. 66 Ibid, s 13(2). 67 Ibid, s 2(d). 68 Ibid, s 13(1). 69 See, for example, Thomas Socknat, “Conscientious Objectors in the Context of Canadian Peace Movements” (2011) 25 J Mennonite Studies at 61 (“At first limited to a few pacifist religious groups, by the Second World War the right to conscientious objection was extended to all those with a pacifist conscience once alternative service was accepted as a legitimate exemption from military service.”) 36
Witnesses must evangelize and provide religious instruction to others). 70 This argument failed in two lawsuits that, taken together, concluded that Witnesses were neither a “religious denomination” nor could each and every Witness be considered “clergy”.71
Nearly 11,000 men were conscientious objectors in Canada during World War II.72 Most were Mennonites (63%) and Doukhobors (20%).73 On August 15, 1946, conscientious objector status came to an end.74 As in World War I, Canada did not provide exemptions from military service to non-religious objectors during World War II.75 This may be a product of the intimate link between conscience and religion in the context of conscientious objection to military service
– a link first made in the 1793 Upper Canada legislation and which continued in the 1868 Militia
Act and the 1917 MSA. This link continued in the context to which I now turn: how and when freedom of conscience appeared as a broadly cast human right in Canadian legislation prior to the
Charter. Coincidentally, the first appearance of this sort occurred shortly after World War II.
Legislation
In 1947, the Canadian province of Saskatchewan enacted the Saskatchewan Bill of Rights
Act – the first comprehensive bill of rights to be enacted in Canada.76 It guaranteed fundamental freedoms as well as protection against discrimination on certain grounds. The first right listed in it
70 PC 1944-1355, (1944), reprinted in Canada, Privy Council Office, Canadian War Orders and Regulations, 1944 (Ottawa: King’s Printer, 1944) Vol I, No 11, 566-587. 71 Greenlees v Attorney-General for Canada, [1946] SCR 462, [1947] 1 DLR 798; R v Stewart, [1944] 3 DLR 331, 81 CCC 349 (BCCA). Jehovah’s Witnesses have also objected to military service in peacetime. In Jensen (Re) [1976] 2 FC 665, FCJ No 72 (Citizenship App Ct), the Court refused to allow a husband and wife who were Jehovah’s Witnesses to take the oath of Canadian citizenship with a reservation that they would not contribute, directly or indirectly, to any future Canadian war effort. The Court was “not prepared … to declare that our law has changed to the extent that a citizen is not obliged to faithfully contribute directly to the prosecution of a war in which Canada may be engaged because he objects to war on moral or religious grounds” (para 24). 72 Global Anabaptist Mennonite Encyclopedia Online, supra note 50. 73 Ibid. 74 PC 1946-3030, (1946), reprinted in Canada, Privy Council Office, Statutory Orders and Regulations (Ottawa: King’s Printer, 1946) Vol III, No 4, 168. 75 Pollard, supra note 56 at 78. 76 The Saskatchewan Bill of Rights Act, 1947, SS 1947, c 35. 37 is “freedom of conscience”, alongside freedom of “opinion and belief, and freedom of religious association, teaching, practice and worship”.77
Alberta tried to pass a similar bill of rights to Saskatchewan’s in 194678 but failed when the Judicial Committee of the Privy Council invalidated the legislation because it concerned banking (a matter of federal rather than provincial jurisdiction).79 The failed Alberta bill of rights included the freedom for each person to “hold and cherish his own religious convictions and to worship in accordance with the dictates of his own conscience”.80
Brooke Jeffrey argues that the 1947 Saskatchewan Bill of Rights – as well as the Universal
Declaration of Human Rights of the United Nations promulgated in 1948 – hastened the arrival of the Canadian Bill of Rights in 1960.81 Ian Greene notes that John Diefenbaker, the Prime Minister under whom the Canadian Bill of Rights was enacted, grew up in Saskatchewan and was “familiar” with the Saskatchewan Bill of Rights.82 It is unknown, however, why “freedom of conscience” is absent from the Canadian Bill of Rights. Richard Haigh studied this issue and found no substantive discussion in the legislative debates preceding the enactment of the Canadian Bill of Rights (or the
Saskatchewan and Alberta bills of rights) on freedom of conscience. He concludes that, in these debates, conscience is “either discounted, assumed to be very similar to religion, or ignored.”83
The only other provincial human rights code in Canada that mentions freedom of conscience is the 1975 Quebec Charter of human rights and freedoms, section 3 of which protects
77 Ibid at s 3. 78 Alberta Bill of Rights, 1946 SA, c 11 [Alberta Bill of Rights]. 79 Alberta (AG) v Canada (AG) (Bill of Rights), [1947] AC 503, 4 DLR 1 (JCPC). 80 Alberta Bill of Rights, supra note 78 at s 3. 81 Canadian Bill of Rights, SC 1960, c 44. Also see Brooke Jeffrey, “The Evolution of Human Rights Protection in Canada” in Gordon DiGiacomo, ed, Human Rights: Current Issues and Controversies (Toronto: University of Toronto Press, 2016) 3 at 13. 82 Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989) at 23. 83 Richard A Haigh, A Burl on the Living Tree: Freedom of Conscience In Section 2(a) Of The Canadian Charter of Rights and Freedoms (SJD Thesis, University of Toronto, 2012) [unpublished] at 100. 38
“freedom of conscience”, among other “fundamental freedoms”.84 As for the Canadian territories, only the Yukon Human Rights Act – which, like the Saskatchewan legislation, is divided into a bill of rights and an anti-discrimination portion – guarantees to every individual and group “the right to freedom of religion, conscience, opinion, and belief”.85 Notably, the historical link between conscience and religion persists in these bills of rights. Wherever freedom of conscience appears in Canadian human rights legislation, freedom of religion is nearby.
Aside from human rights legislation, “conscience” appears in numerous federal and provincial statutes but, again, almost always in close proximity to “religion” or related words.86
However, there are some statutory references to “conscience” in which “religion” is absent.
Ontario’s Courts of Justice Act states that the Small Claims Court “shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.”87 Quebec’s Labour Code obliges arbitrators to make their decisions and render awards “according to equity and good conscience.”88 And British Columbia’s
Arbitration Act requires arbitrators to “adjudicate the matter” by “reference to law unless the parties, as a term of an agreement” agree that “the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis.”89
Jurisprudence
Reference has already been made to pre-Charter jurisprudence on conscientious objection to military service, such as litigation in which Jehovah’s Witnesses during World War II claimed
84 Charter of Human Rights and Freedoms, CQLR, c C-12. 85 Human Rights Act, RSY 2002, c 116, s 3. 86 See, for example, Ontario’s Immunization of School Pupil’s Act, RSO 1990, c I.1. Section 3(3) permits parents to exempt their children from mandatory vaccinations upon filing a “statement of conscience or religious belief”. 87 Courts of Justice Act, RSO 1990, c C.43, s 25. 88 Labour Code, CQLR, c C-27, s 79. 89 Arbitration Act, RSBC 1996, c 55, s 23(1). 39 to be a “religious denomination” and that all members are “clergy”. There exist other pre-Charter cases that implicate freedom of conscience, but they are scarce and freedom of religion is almost always implicated. As the following survey of the case law reveals, the notion of conscience doing work independent of religion is almost non-existent in the pre-Charter jurisprudence.
In 1865, the Upper Canada Court of Common Pleas concluded that Jews may, during legal proceedings, swear an oath in any manner suitable to their faith: “The form of administering the oath is of no consequence in law, so long as it is administered in such form and with such ceremonies as the parties declare to be binding on their consciences.”90 In 1913, Fitzpatrick C.J. of the Supreme Court of Canada affirmed the “absolute right of every person” to be “sworn for every purpose” without a Bible but with raised hand and invoking God (the so-called “Scotch form”). 91 He noted, however, that it may be “better as a matter of public policy” for oaths to be taken according “to the time-honoured custom of swearing witnesses upon the Bible or Testament in all cases except those where the witness or party claims to have conscientious objections to swearing in that mode or form.”92
In 1874, a British Columbia court considered whether the Church of England could prevent a former clergyman from preaching. Chief Justice Matthew Begbie declared that there is
“unlimited freedom of conscience here as in England” and thus every person, “whether he has been ordained in the Church or not, is at liberty so far as the lay Courts are concerned, to preach what he likes, and where he likes (within certain limits of public decency)”. 93
90 Frank v Carson, [1865] OJ 147, 15 UCCP 135 (Upp Can Ct Com Pleas). 91 Curry v The King, [1913] SCR 532 at 535, 15 DLR 347. 92 Ibid. Section 16 of Ontario’s Evidence Act, RSO 1990, c E.23 provides: “Where an oath may be lawfully taken, it may be administered to a person while such person holds in his or her hand a copy of the Old or New Testament without requiring him or her to kiss the same, or, when the person objects to being sworn in this manner or declares that the oath so administered is not binding upon the person’s conscience, then in such manner and form and with such ceremonies as he or she declares to be binding.” Legislation in New Brunswick, Alberta, and Manitoba contain similar provisions. 93 Bishop of Columbia v Cridge, [1874] BCJ No 1 at para 12, 1 BCR (Pt 1) 5. 40
In 1912, the Supreme Court of Canada considered a clause in the federal Marriage Act stipulating that that no persons authorized by law to solemnize marriages “can be compelled to solemnize a marriage to which any impediment exists according to the doctrine and belief of his religion, and the discipline of the church to which he belongs”.94 Davies J. upheld the “conscience clause” (as he called it) on the basis that no person “would think it right to place a priest or clergyman in a position to be compelled to celebrate a marriage which the doctrine, belief and discipline of his church forbade him to celebrate.”95
In 1945, the Ontario Court of Appeal decided the case of two schoolchildren who, as
Jehovah’s Witnesses, refused to sing the national anthem, repeat the oath of allegiance, and salute the flag.96 An Ontario statute allowed a student to forego “any exercise of devotion or religion, objected to by his parent or guardian.”97 Gillanders J.A. avoided the issue of whether the activities were such exercises: “For the Court to take to itself the right to say that the exercises here in question had no religious or devotional significance might well be for the Court to deny that very religious freedom which the statute is intended to provide.”98 While the Court ultimately decided the case on religious freedom grounds, it refers often to conscience. Henderson J.A. declares that it is “fundamental that you have freedom of conscience according to individual conscience.”99
Counsel for the claimants distilled their clients’ claim to the principle that “it is not for the state to decide as regards their consciences.”100 The Court ruled in favour of the children.
One of the few cases in which the conscience-religion link is broken (or at least weaker) is
94 In re Marriage Laws, [1912] SCR 132 at 160, 6 DLR 588 95 Ibid at 355. 96 Donald et al v The Board of Education for the City of Hamilton et al, [1945] OR 518, 3 DLR 424 (CA) [Donald cited to OR]. 97 The Public Schools Act, RSO 1937, c 357, s 89. 98 Donald, supra note 96 at 530. 99 Ibid at 524. 100 Ibid at 521. 41
Re Civil Service Association Ontario (Inc) and Anderson et al.101 The case involved a public servant in Ontario who wished to not pay union dues because of his conscientious belief that strikes are immoral because of the disruption they cause to society and the economy. A tribunal allowed his claim pursuant to a provision in an Ontario statute that allowed certain workers to opt out of paying union dues on the basis of “religious convictions or belief”.102
While Anderson may seem to be yet another example of a Canadian court linking conscience and religion, a closer examination may suggest otherwise. The claimant asserted that he belonged to the United Church of Canada, which “encourages the making of individual moral judgments relating to the ordinary affairs of life” – that is, to form and follow one’s conscience.103
The union argued that the tribunal erroneously construed the claimant’s belief as “religious”. The union appeared to view the belief as purely conscientious and thus not religious. In other words, the union argued for a distinction between conscience and religion. On appeal, the High Court of
Justice of Ontario held that while “in some circumstances, or with respect to some individuals, matters of morality might well be quite separate and distinct from matters of religious belief”, it
“does not follow that a matter of individual morality and conscience may not, for some individuals, be an important element or tenet in their religious convictions or belief.” 104 The Court held that the latter scenario described the claimant, who “regards the matter of making individual moral judgments on issues of this sort as being an element of his religious convictions or belief.”105
The Court in Anderson arguably committed a leap in logic. The claimant’s “religious” belief was that one must form and follow one’s conscience, but the belief that strikes are immoral
101 Re Civil Service Association Ontario (Inc) and Anderson et al (1976), 9 OR (2d) 341, [1975] OJ No 2403 (HCJ) [Anderson cited to OJ]. 102 Crown Employees Collective Bargaining Act, 1972, SO 1972, c 67, s 15(2). 103 Anderson, supra note 101 at para 3. 104 Ibid at para 6. 105 Ibid. 42
– a product of acting on that religious belief – was strictly speaking a conscientious belief (a moral judgment). Nonetheless, for the purposes of discussing how freedom of conscience figures in pre-
Charter jurisprudence, it is significant that Anderson recognized that, for some people, matters of morality and conscience are distinct from their religion. Thus the claimant would not have succeeded if his belief about the immorality of strikes lacked a religious inspiration, as the statute did not refer to conscientious convictions or beliefs.
A subsequent decision by the Ontario Labour Relations Board in 1981 made this implication in Anderson explicit. The case involved a professor at York University – Douglas
Butler, a former Seventh Day Adventist – who applied under the Labour Relations Act for an exemption from having to pay union dues because of a “religious conviction or belief”.106 He asserted his “strong personal conviction that as an institution for the advancement of human culture, the University must respect the individual’s conscience and integrity” and that payment of union dues was “totally abhorrent” to his conscience.107 The relevant provision of the Labour
Relations Act meant that the case hinged, as in Anderson, on whether Butler’s conviction or belief was “religious”. The Board concluded that it was not:
Had the Legislature chosen to grant the objection simply on the basis of “personal conviction”, or “genuine belief”, or “matters of conscience”, it could easily have done so. But it did not. The section is not written simply for “conscientious objectors”.108
In Butler the Board affirmed that conscientious beliefs may, in some cases, be distinct from religious beliefs. The implication is that had the statute provided an exemption for “conscience”,
Butler would have succeeded in obtaining an exemption from paying union dues.
Despite Anderson and Butler, the overwhelming majority of pre-Charter jurisprudence
106 Butler v York University Faculty Association, 1981 CanLII 827 (ON LRB) at para 1. 107 Ibid at para 7. 108 Ibid at para 16. 43 implicating conscience intimately links it to religion. In short, conscience is mainly understood as religious conscience. This trait of the pre-Charter jurisprudence is captured in Chaput v Romain, a case in which police officers entered a home without a warrant and broke up a religious meeting of Jehovah’s Witnesses.109 Taschereau J. of the Supreme Court of Canada declared that because the “conscience” of each person is a personal matter Canada has no state religion, no person is obliged to adhere to a religion, and all religions are on an equal footing.110
Having surveyed the pre-Charter jurisprudence implicating freedom of conscience, I turn now to the legal history of this freedom during the Charter era. I start with the drafting history of the Charter and focus on how and why s. 2(a) came to guarantee “freedom of conscience”.
II. Freedom of Conscience in the Charter
Drafting the Charter
In February 1968, (then Minister of Justice) Pierre Elliott Trudeau presented a policy paper entitled “A Canadian Charter of Human Rights” at a First Ministers’ Conference in Ottawa.111 It advocated for adding a bill of rights to the Canadian Constitution and it included a draft bill of rights. As in the Charter, freedom of conscience and religion appears in the draft as a single right
(but under “Political Rights” instead of “Fundamental Freedoms”).112
The paper provides two reasons for including freedom of conscience in such a bill of rights, bearing in mind that the Canadian Bill of Rights (enacted eight years earlier) did not guarantee this freedom. The first reason was to protect non-religious persons. Trudeau opined that “freedom of religion” on its own arguably “does not protect the person who chooses to have no religion”, so
109 Chaput v Romain, [1955] SCR 834, 1 DLR (2d) 241 [Chaput cited to SCR]. 110 Ibid at 840. 111 Pierre Elliott Trudeau, A Canadian Charter of Human Rights (Ottawa: Queen’s Printer, 1968). 112 Ibid at 17-18. 44 the guarantee should include “freedom of conscience” to protect them.113 One decade later,
Minister of Justice Otto Lang echoed this position, stating that freedom of conscience is meant “to protect those who choose to have no religion.”114 Trudeau also noted in the 1968 policy paper that while freedom regarding an individual’s “internal belief or conscience might well be considered absolute and not qualified in any way”, it is the “external manifestation of the exercise or furtherance of beliefs which may give rise to problems and the need for limitations in the interest of public safety and order.”115
The second reason Trudeau identified for including freedom of conscience in a constitutional bill of rights was the existing jurisprudence of the Supreme Court of Canada that upheld legislation forcing businesses to close on Sundays in observance of the Christian Sabbath on the basis that such legislation does not offend the religious freedom of non-Christians.116
Trudeau doubted whether such legislation would be “consistent with freedom of ‘conscience’.”117
Richard Haigh interprets Trudeau as “making the point that the legislation could be subject to attack if there were a fundamental freedom of conscience on the books.”118
The notion that freedom of conscience only protects non-religious persons, even if correct, does not shed light on what it protects in relation to these persons. If the freedom is meant to protect their conscientious beliefs, what qualifies as such a belief? To date, this role has been assumed by freedom of religion in Charter jurisprudence: freedom of religion has been interpreted to include the freedom have no religion119 and the state’s duty of neutrality in matters of religion
113 Ibid at 18. 114 Anne F Bayefsky, Canada’s Constitution Act 1982 and Amendments: A Documentary History, Vol. 1 (Toronto: McGraw-Hill Ryerson, 1989) at 503. 115 Trudeau, supra note 111 at 18. 116 See, for example, Robertson and Rosetanni v The Queen, [1963] SCR 651, 41 DLR (2d) 485. 117 Trudeau, supra note 111 at 18. 118 Haigh, supra note 83 at 112. 119 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346-347, 18 DLR (4th) 321 [Big M Drug Mart]. 45
(and irreligion) also seems to be grounded in religious freedom.120 In other words, freedom of religion seems to be doing the work that Trudeau envisioned in 1968 for freedom of conscience.
Freedom of conscience appears in every draft of the Charter and always with freedom of religion. For a time, freedom of thought accompanied these two freedoms.121 Ultimately freedom of thought landed in a separate provision – section 2(b) – with freedom of “belief, opinion, and expression, including freedom of the press and other media of communication.”122 The final arrangement may reflect the preference expressed in 1972 by a Special Joint Committee of
Parliament to not have freedom of thought “linked solely with freedom of conscience and religion, since it actually has (and presumably is intended to have) a wider application”.123 In 1978, Minister of Justice Otto Lang noted this concern as being inspired by the view that “freedom of thought encompasses more than simply religious values.”124
During the drafting of the Charter, deliberation on the content of and rationale for freedom of conscience is scarce. Richard Haigh observes that in “four volumes of testimony produced by the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada”, which comprises “over 5000 pages of text”, the word “conscience” appears “only a handful of times, most often simply accompanying religion in a reference to the complete s. 2(a) phrase.”125
Haigh identifies one “sustained discussion on conscience” when MP Svend Robinson objected to including “God” in the preamble to the Charter. Robinson viewed the reference as incompatible with freedom of conscience: “What [freedom of conscience] means, of course, is that we, as a
120 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3. 121 Bayefsky, supra note 114 at 214. 122 Charter, supra note 1 at s 2(b). 123 Bayefsky, supra note 114 at 239. 124 Ibid at 503. 125 Haigh, supra note 83 at 113-114, citing Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 42 (21 January 1981). 46 dualistic society, respect diverse viewpoints; we do not entrench one particular religion; indeed we do not entrench any religion at all.”126 He also stated: “We leave Canadians free to choose for themselves on the basis of their own consciences” and argued that the “proposed preamble would not reflect that reality.”127
Another discussion of freedom of conscience appears elsewhere in the minutes of the
Special Joint Committee. John Ackroyd, the Chief of the Metro Toronto Police, made statements to the Committee on behalf of the Canadian Association of Chiefs of Police. He stated that the word “conscience” in s. 2(a) was “vague”, “unnecessary”, and ran the risk of being given “so broad an interpretation by the courts as to make various sections of the criminal law inoperative, for example, those sections relating to morals and drug offences.”128 Ackroyd also noted a concern with what protection for freedom of conscience “might mean in relation to various cults that are operating in our country.”129 He opined that freedom of conscience could open the door to legal claims that “certain sexual behaviour” or the “use of certain drugs and chemicals” cannot be criminalized.130 In response to these concerns, William Black of the British Columbia Civil
Liberties Association defended the inclusion of freedom of conscience in the Charter. Echoing
Trudeau in 1968, Black cited the “value of including freedom of conscience as well as freedom of religion is that it makes clear that people can have very deeply held beliefs that they might not call religious beliefs, but which are equally fundamental to them”.131 As for the “possibility that the
Supreme Court of Canada or any other court would interpret” freedom of conscience in a way
126 Special Joint Committee, supra note 125 at 41. 127 Ibid. 128 Adam Dodek, The Charter Debates: The Special Joint Committee on the Constitution, 1980-81, and the Making of the Canadian Charter of Rights and Freedoms (Toronto: University of Toronto Press, 2018) at 114-115. 129 Ibid at 115. 130 Ibid. 131 Ibid at 116. 47
“which would hinder law enforcement”, Black considered it “nonexistent”.132 Professor Peter
Russell of the University of Toronto noted that freedom of conscience “bothered” him “a great deal” because, as he put it: “My conscience often moves me to do some pretty funny things, and maybe yours does; but I do not see a place for that in the higher law of Canada.”133
In summary, there is some evidence on why freedom of conscience was included in the
Charter (namely to protect non-religious persons) but little on the substance of what it protects.
The silence on the substance may pertain to a difficulty in defining the freedom. Jean Chrétien, the
Minister of Justice when the Charter came into effect, describes in his memoirs how freedom of conscience almost did not make the cut because negotiators found it too difficult to define. When
Chrétien agreed to remove it, a legal advisor to the federal government kicked his chair, inspiring
Chrétien to say: “I guess we leave it in. Trudeau’s spy just kicked me in the ass.”134
Early Charter Scholarship
In the early days of the Charter, most Canadian legal scholars viewed freedom of conscience as exclusively protecting non-religious persons. In 1982, Peter Hogg wrote that freedom of conscience is “perhaps designed to protect systems of belief such as atheism or agnosticism, or possibly even quasi-religious cults, which might not be characterized as
‘religions’”.135 He also opined that the reference to “God” in the preamble “does not seem helpful in construing s. 2(a)” because conscience “must surely protect systems of belief which do not accept the existence of God.”136 This statement echoes the view of MP Svend Robinson during the
132 Ibid. 133 Ibid. 134 Jean Chrétien, Straight From The Heart (Toronto: Key Porter Books Limited, 1994) at 173. Pierre Trudeau was Prime Minister of Canada at the time the Charter came into effect in 1982. 135 Peter W Hogg, Canada Act 1982 Annotated (Toronto: Carswell, 1982) at 15. 136 Ibid at 9. 48 drafting of the Charter that the reference to God and freedom of conscience are incompatible. Dale
Gibson cites freedom of conscience to allay concerns that the reference to God “might be used to justify an unduly narrow interpretation of some rights”, particularly “the rights of atheists”.137 He viewed this fear as “probably unwarranted” because freedom of conscience is a “broader concept than freedom of religion”.138 Gerald Gall dismissed this fear, arguing that inclusion of conscience in s. 2(a) is “obviously to satisfy the concerns of atheists and agnostics”.139 Relatedly, Gail Starr suggested that freedom of conscience enables the “development of a concept of freedom from religion” – in other words, freedom from “having elements of one’s life dictated by prevailing patterns of religious belief”.140
In early Charter scholarship, Morris Manning provided a more extensive commentary on freedom of conscience in s. 2(a). He argued that its meaning is affected by the reference to God in the preamble and by freedom of religion in s. 2(a).141 Freedom of conscience is, in his view, a
“clear guarantee of the secular nature of the state and of a recognition that the Charter was designed to guarantee to those who act out of conscience the same level of freedom as those who act out of a religious belief.”142 He argued that just “as an individual may act unhampered in pursuing religious beliefs he or she may act unhampered in matters of conscience.”143 Manning is not explicit on whether “matters of conscience” encompass religiously inspired conscientious beliefs or not. He implies that religious conscience is excluded when he asserts that the guarantee of
137 Dale Gibson, The Law of the Charter: General Principles (Toronto: Carswell, 1986) at 66. 138 Ibid. 139 GL Gall, “Multiculturalism and Fundamental Freedoms: Section 27 and Section 2” in Canadian Human Rights Foundation, Multiculturalism and the Charter: A Legal Perspective (Toronto: Carswell, 1987) 29 at 31. 140 Gail Starr, “Popular Rights In (And Out Of) The Constitution” in Robert Martin, ed, Socialist Studies: A Canadian Annual No. 2: Critical Perspectives on the Constitution (Winnipeg: Society for Socialist Studies, 1984) 8 at 10. 141 Morris Manning, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond-Montgomery, 1983) at 199. 142 Ibid. 143 Ibid. 49 freedom of conscience “shows that section 2(a) is not limited to moral and religious convictions, but embraces philosophical, political convictions or beliefs”.144 He also argues, in line with Gail
Starr with respect to freedom from religion, that freedom of conscience was “also included for clarification; the right to have freedom of religion is also the right not to hold any beliefs.”145
What can be made of the academic viewpoints on freedom of conscience in the early days of the Charter? There is a general consensus that the freedom’s target audience is non-religious persons. The academic scholarship thus supports and builds on Trudeau’s 1968 policy paper, which advocated for including freedom of conscience in the Charter to protect these persons. The scholarship appears to reject an interpretation of freedom of conscience under which the freedom protects (i) religious conscience or (ii) all conscientious beliefs regardless of whether they stem from religion or secular morality. The scholarship excludes religious conscience, implying that freedom of religion protects this category of conscientious belief.
Jurisprudence – Supreme Court of Canada
Section 2(a) of the Charter guarantees “freedom of conscience and religion”, but most s.
2(a) jurisprudence focuses on “religion”. How has freedom of conscience appeared in Supreme
Court of Canada jurisprudence? The short answer is more of what was seen before the Charter: an intimate link between religion and conscience (with a few exceptions).
The first case to pay exclusive attention to “freedom of conscience” in the Charter was the first Supreme Court of Canada decision to interpret s. 2(a): R v Big M Drug Mart Ltd.146 The case featured a challenge to Alberta’s Lord’s Day Act – specifically the provision prohibiting commerce on Sundays in observance of the Christian Sabbath. Violating the legislation constituted an offence
144 Ibid (emphasis added). 145 Ibid. 146 Big M Drug Mart, supra note 119. 50 punishable on summary conviction. The Court held that the Lord’s Day Act unjustifiably limited s. 2(a) because it effectively compelled observance of the Christian Sabbath by all. While the Court held that the legislation unjustifiably limited s. 2(a), it is unclear whether it based its decision on the ground of “conscience” or “religion” (or both).
Justice Brian Dickson (as he then was), writing for the majority in Big M Drug Mart, expounded on the history, rationale, and value of s. 2(a). He described the historical path that led to the “single integrated concept” of “freedom of conscience and religion” in s. 2(a) as originating
“in the religious struggles in post-Reformation Europe” with opposition by “large numbers of people” to laws “aimed at enforcing conformity to religious beliefs they did not share”.147
Opposition to such laws in the United Kingdom started with “those who upheld the prohibited faiths and practices” but eventually spread among the entire population.148 The “basis of this opposition”, he writes, was “no longer simply a conviction that the State was enforcing the wrong set of beliefs and practices but rather the perception that belief itself was not amenable to compulsion” and that attempts to do so “denied the reality of individual conscience and dishonoured the God that had planted it in His creatures.”149
Dickson J. stated that s. 2(a) is inspired by the “centrality of individual conscience and the inappropriateness of governmental intervention to compel or to constrain its manifestation.”150 In his view, it is “easy to see the relationship between respect for individual conscience and the valuation of human dignity that motivates such unremitting protection.”151 The value of freedom of conscience is revealed in this paragraph:
147 Ibid at 345-346. 148 Ibid at 345. 149 Ibid. 150 Ibid at 346. 151 Ibid. 51
[A]n emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the [Charter] as "fundamental". They are the sine qua non of the political tradition underlying the Charter.152
Dickson J. states that the “values that underlie our political and philosophic traditions” dictate that every person “be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.”153 As for the relationship between “conscience” and “religion” in s. 2(a), religious beliefs and practices “are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations” – so too, he concludes, “are expressions and manifestations of religious non-belief and refusals to participate in religious practice.”154 For this reason, s. 2(a) must “at the very least mean” that
“government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose.”155
The discussion of s. 2(a) in Big M Drug Mart does not specify whether “conscience” and
“religion” do any independent work of one another and, if they do, what the division of labour between them should be. Describing s. 2(a) as a “single integrated concept” may suggest that there is no division of labour, but at times Dickson J. focuses on freedom of conscience only, and significantly calls it the sine qua non – the indispensable or essential ingredient – of the underlying political tradition of the Charter. Richard Haigh describes freedom of conscience as a “burl” on the “living
152 Ibid. 153 Ibid. 154 Ibid at 346-347. 155 Ibid at 347. 52 tree” of the Charter: a “growth sometimes hidden in plain view, that can, with human ingenuity and craft, be turned into a valuable object.”156 While I do not disagree, Big M Drug Mart suggests that freedom of conscience is also a “root” of this “living tree”. Like a root to a tree, Dickson J. presents freedom of conscience as essential and indispensable to the existence and development of the Charter.
Big M Drug Mart gives the distinct impression that without freedom of conscience, the Charter would be a futile endeavour – the “living tree” would wither and die. Dickson J. goes so far as to embed conscience within the concept of “freedom” itself: “Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.”157
Despite the stated centrality of “conscience” to the Charter in Big M Drug Mart, the Supreme
Court has said little on freedom of conscience since. In Morgentaler (1988), Justice Bertha Wilson stated that the decision “whether or not to terminate a pregnancy is essentially a moral decision, a matter of conscience” and that, in a “free and democratic society”, the conscience of the individual
– here, of a woman – is “paramount” to that of the state.158 She quoted many of the statements of
Dickson J. in Big M Drug Mart on freedom of conscience and did not interpret him as saying that a “personal morality which is not founded in religion is outside the protection of s. 2(a).”159 She opined that “conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a).”160 The implication is that freedom of conscience “equally” protects “conscientious beliefs” that are religiously and non-religiously motivated. Wilson J. also stated that s. 2(a) “should be broadly construed to extend to conscientiously-held beliefs, whether
156 Haigh, supra note 83 at 18. 157 Big M Drug Mart, supra note 119 at 337. 158 R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385 at 175-176 [Morgentaler]. 159 Ibid at 178. 160 Ibid. 53 grounded in religion or in a secular morality”, noting that as a “matter of statutory interpretation”, the words conscience and religion should “not be treated as tautologous if capable of independent, although related, meaning.”161 In sum, Wilson J. links conscience to a “moral decision” and concludes that freedom of conscience protects “conscientiously-held beliefs” – moral beliefs – whether grounded in “religion” or in “secular morality”.162
In Syndicat Northcrest v Amselem (2004),163 the Supreme Court of Canada defined
“religion” for the purposes of “freedom of religion” in the Quebec Charter (and by extension in s.
2(a) of the Canadian Charter). In so doing, the majority distinguished “beliefs, convictions and practices rooted in religion” from “those that are secular, socially based or conscientiously held”.164 While the former are protected by freedom of religion, the latter are not. But are beliefs, convictions, and practices that are “secular, socially based or conscientiously held” protected by freedom of conscience? While the majority in Amselem did not define “conscience” in s. 2(a), this statement may shed some light on what freedom of conscience protects – especially the reference to “conscientiously held” beliefs, convictions, and practices. While the statement implies that
“conscience” and “religion” in s. 2(a) do some independent work of one another, the Court did not define “conscientiously held” beliefs.
The dissent in Amselem is another example of the customary link between “conscience” and “religion” in Canadian jurisprudence. Bastarache J. concluded that “[r]eligious precepts constitute a body of objectively identifiable data that permit a distinction to be made between genuine religious beliefs and personal choices or practices that are unrelated to freedom of
161 Ibid at 179. 162 Ibid. 163 Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 [Amselem]. 164 Ibid at para 39. 54 conscience.”165 He also referred to a 1996 decision of the Court in which, after affirming certain statements in Big M Drug Mart, held that “freedom of religion ensures that every individual must be free to hold and to manifest without State interference those beliefs and opinions dictated by one’s conscience.”166 Finally, Bastarache J. noted how “religion is, first and foremost, a question of conscience.”167 If religion is fundamentally a question of conscience, this suggests that religious beliefs and practices are protected by freedom of conscience. What, then, would be left for freedom of religion to protect? Regardless of the answer, is it not more accurate to say that religion is first and foremost a question of faith rather than conscience? Perhaps, as I suggest in Chapter 2, there are aspects of a person’s religion that engage conscience (moral judgments) and aspects that do not (matters of faith). If so, the former may be protected by freedom of conscience and the latter protected by freedom of religion.
The most recent Supreme Court of Canada decision that touches on freedom of conscience is Alberta v Hutterian Brethren of Wilson Colony in 2009.168 The Wilson Colony of Hutterian
Brethren challenged a law in Alberta requiring submission of a facial photograph when applying for an Alberta driver’s licence. The law sought to reduce identity fraud committed with driver’s licences through a photograph database equipped with facial recognition. Before 2003, Hutterites were exempted from the photograph requirement because of their religious belief that a facial photograph is an icon and thus violates the Second Commandment. The issue before the Supreme
Court was whether the law was a justifiable limit on the Colony’s religious freedom. Alberta conceded a breach of freedom of religion under s. 2(a). In a 4-3 decision, Chief Justice McLachlin, writing for the majority, dismissed the Colony’s claim.
165 Ibid at para 135. 166 Ibid at para 136, citing Ross v New Brunswick School District No 15, [1996] 1 SCR 825 at para 72, 133 DLR (4th) 1. 167 Ibid at para 140. 168 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 [Hutterian Brethren]. 55
Freedom of conscience subtly appears in Hutterian Brethren in two judgments. First,
McLachlin C.J. notes that the interests of “atheists, agnostics, sceptics, and the unconcerned” are
“equally protected by s. 2(a)” and that in “judging the seriousness of the limit in a particular case, the perspective of the religious or conscientious claimant is important.”169 The suggestion here may be that freedom of conscience protects the “conscientious claimant”, whom McLachlin C.J. implies is a non-religious person. Second, LeBel J. notes that “one might have thought that the guarantee of freedom of opinion, freedom of conscience, freedom of expression and freedom of association could very well have been sufficient to protect freedom of religion” but the “framers of the Charter thought fit to incorporate” an “express guarantee of freedom of religion, which must be given meaning and effect.”170 If freedom of conscience (and the other fundamental freedoms in s. 2 of the Charter mentioned by LeBel J.) do not suffice to protect religious freedom, it can be equally said that religious freedom (along with the other fundamental freedoms) do not suffice to protect freedom of conscience. Freedom of conscience, which LeBel J. identifies as a standalone freedom, must also “be given meaning and effect.”171
Jurisprudence – Other Canadian Courts
The survey of Charter jurisprudence on freedom of conscience has been restricted so far to Supreme Court of Canada decisions, none of which decided a case on the basis of freedom of conscience alone. What have lower Canadian courts said about this Charter freedom?
A passing reference to freedom of conscience appears in a 1985 court ruling from British
Columbia. McKay J. picked up on the “single integrated concept” phrase used in Big M Drug
169 Ibid at para 90. 170 Ibid at para 180. 171 Ibid. For a more recent example of this approach to interpreting the Charter, see the reasons of Abella J on “freedom of the press and other media” in s. 2(b) in R v Vice Media Canada Inc, 2018 SCC 53 at paras 121-133. 56
Mart to describe “freedom of conscience and religion” in order to conclude that “freedom of conscience safeguarded in the Charter relates to freedom of conscience in matters of religion”.172
In other words, freedom of conscience only concerns religious conscience.
Dr. Jerilynn Prior, a Quaker, argued that the Income Tax Act violated her freedom of conscience and religion under the Charter because it forced her to give some of her income tax to military expenditures. The Federal Court rejected her claim, noting an insufficient nexus between the income tax she paid to the Canadian government and funds it used for the military.173 The
Federal Court of Appeal upheld the decision174 and the Supreme Court of Canada refused to hear the case.175 Dr. Prior went to the Human Rights Committee of the United Nations, claiming a breach of Article 18 of the International Covenant on Civil and Political Rights (which guarantees freedom of thought, conscience and religion).176 The Committee held that while Article 18
“certainly protects the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures, the refusal to pay taxes on grounds of conscientious objection clearly falls outside” its scope.177
The 1984 case of R v Videoflicks Ltd decided by the Ontario Court of Appeal featured a challenge to an Ontario law – the Retail Business Holidays Act – that forced businesses to close on Sundays (unless a business was a certain size and it closed on Saturdays).178 The Court upheld the law after concluding that it did not compel observance of the Christian Sabbath; instead, it
172 BC (AG) v Bd Of School Trustees of Sc Dist. 65 (Cowichan) (1985), 63 BCLR 130, BCJ No 2934 (SC) at para 13. 173 Prior v Canada, [1988], 2 FC 371 FCJ No 107 (FCTD). 174 Prior v Canada, [1989] FCJ No 903, 2 CTC 280 (CA). 175 R v Prior, [1989] SCCA No 441 (SCC). 176 UN Human Rights Committee, Dr JP v Canada, Comm No 446/1991, IHRL 1720 (UNHRC 1991) (7 November 1991). 177 Ibid at para 4.2. 178 R v Videoflicks Ltd, (1984) 48 OR (2d) 395, OJ No 3379 (CA) [Videoflicks cited to OJ]. 57 featured the secular purpose of giving holidays on certain dates, including Sundays.179 The Court discussed freedom of conscience after summarizing the 1945 case mentioned earlier concerning children who, as Jehovah’s Witnesses, refused to participate in activities such as the singing of the national anthem at school. The Court in Videoflicks noted that the case was decided on freedom of religion grounds but that “the same reasoning would apply” to “freedom of conscience, except that freedom of conscience would generally not have the same relationship to the beliefs or creed of an organized or at least collective group of individuals.”180 On what freedom of conscience protects, it “would not appear to be the mere decision of any individual on any particular occasion to act or not act in a certain way” – rather, “the behaviour or practice” would “have to be based upon a set of beliefs by which one feels bound to conduct most, if not all, of one’s voluntary actions.”181
Applying these statements to the issue in Videoflicks, to object to a statutory holiday on the basis of freedom of conscience “one would have to demonstrate, based upon genuine beliefs and regular observance, that one holds as a sacrosanct day of rest a day other than Sunday and is thereby forced to close one’s business on that day as well as on the enforced holiday.”182 The
Supreme Court of Canada resolved the dispute in Videoflicks in the case known as R v Edwards
Books and Art Ltd.183 Dickson C.J., for the majority, held that the Retail Business Holidays Act limited the religious freedom of Saturday Sabbath observers such as Orthodox Jews and Seventh-
Day Adventists, but the limit was justified. He did not treat freedom of conscience in isolation, but his description of the purpose of s. 2(a) – “to ensure that society does not interfere with profoundly
179 Videoflicks involved several appeals of convictions under the law against business owners who conducted commerce on Sundays. Orthodox Jews, whose faith required that they not conduct business on a Saturday, owned one of the businesses. The Court held that the law was of no force and effect vis-à-vis this business. 180 Ibid at para 45. 181 Ibid. 182 Ibid. 183 R v Edwards Books and Art Ltd, [1986] 2 SCR 713, 35 DLR (4th) 1 [Edwards Books]. 58 personal beliefs that govern one’s perception of oneself, humankind, nature, and in some cases, a higher or different order of being” – seems to encompass more than just matters of religion.184
The only case decided exclusively on the basis of freedom of conscience in s. 2(a) is
Maurice v Canada (Attorney General).185 Maurice involved an inmate in a federal prison who had previously requested and received vegetarian meals on the basis of his Hare Krishna faith. He later renounced his faith but continued to request vegetarian meals due to a “conscientiously held belief” that eating non-vegetarian food is “morally reprehensible and poisonous to society as a whole”.186
The Correctional Service of Canada (CSC), the state entity responsible for his custody, refused.
Campbell J. of the Federal Court of Canada concluded as follows:
Thus, while the CSC has recognized its legal duty to facilitate the religious freedoms outlined in the Charter, freedom of conscience has effectively been ignored. Section 2(a) of the Charter affords the fundamental freedom of both religion and conscience, yet by the CSC's policy, inmates with conscientiously held beliefs may be denied expression of their "conscience". […] The CSC cannot incorporate s.2(a) of the Charter in a piecemeal manner; both freedoms are to be recognized.187
Campbell J. concluded that vegetarianism is captured by freedom of conscience because it is
“founded in a belief that consumption of animal products is morally wrong.”188 He cited Big M
Drug Mart on the importance of freedom of conscience and subsequently concluded that “just as the entitlement for a religious diet may be found in s. 2(a) of the Charter, a similar entitlement for a vegetarian diet exists based on the right to freedom of conscience.”189
Freedom of conscience has also surfaced in litigation over refusals by individuals on account of conscience or other reasons to swear allegiance to the British monarch to obtain
184 Ibid at 759. 185 Maurice v Canada (Attorney General), 2002 FCT 69, [2002] FCJ No 72 [Maurice cited to FCJ]. 186 Ibid at para 3. 187 Ibid at para 9. 188 Ibid at paras 9-10. 189 Ibid at para 12. 59
Canadian citizenship. In Roach v. Canada (Minister of State for Multiculturalism and Citizenship),
MacGuigan J.A. cited commentary of Wilson J. in Morgentaler on s. 2(a) and observed that freedom of conscience appears to be “broader than freedom of religion”.190 In his view, freedom of religion “relates more to religious views derived from established religious institutions”, whereas freedom of conscience is “aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles.”191 In McAteer v Canada (Attorney General),192 the claimants argued that a portion of the citizenship oath – “I will be faithful and bear true allegiance to Her Majesty the Queen Elizabeth the Second, Queen of
Canada, Her Heirs and Successors”193 – unjustifiably limited their freedom of conscience and religion, freedom of expression, and equality rights under the Charter.194 The trial court held that the phrase limited the claimants’ freedom of expression but that the limit was justified. The
Ontario Court of Appeal found no limit of any Charter right or freedom. On s. 2(a), the Court found no limit “because the oath is secular and is not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol.”195 One author argues the case should have been decided in the claimants’ favour on the basis of freedom of conscience.196
Conclusion
The legal history of freedom of conscience in Canada began with promises of immunity from military service made by the Canadian state to certain Christian denominations in exchange for immigration to Canada. Freedom of conscience did not first appear in Canada as a broadly
190 Roach v Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FC 406, FCJ No 33 at para 45. 191 Ibid. 192 McAteer v Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1. 193 Ibid at para 1. 194 Ibid at para 3. 195 Ibid at para 7. 196 Léonid Sirota, “True Allegiance: The Citizenship Oath and the Charter” (2014) 33: 2 NJCL 137-168. 60 cast fundamental freedom or human right as it appears in s. 2(a) of the Charter. Rather, it was offered in a circumscribed form to incentivize immigration to Canada.
In the pre-Charter era, freedom of conscience was customarily linked to religion. During the two World Wars of the 20th century, conscientious objection to military service was never afforded to non-religious objectors. Statutory provision for conscientious objection during the
World Wars was primarily inspired by the immigration-related promises made by Canada to the historic Christian peace churches. The rationale for extending this entitlement to other religious denominations and individuals during the World Wars is unclear, but it does not seem farfetched to suggest that the Canadian government felt unable, as a matter of principle, to justify treating differently other Christian denominations that adhered with the same level of fervency to the same belief as those denominations to which the promises were made.
Freedom of conscience – the fundamental and broadly cast human right – first appeared in the 1947 Saskatchewan Bill of Rights (albeit in the same provision as freedom of religion). The link between conscience and religion persisted throughout the pre-Charter era. Apart from two administrative law decisions in Ontario in the late 1970s and early 1980s concerning individuals who wished to opt-out of paying union dues, the notion of freedom of conscience doing work independent of freedom of religion is virtually non-existent.
The prospect of a clear division of labour between freedom of religion and freedom of conscience emerged as the drafting of the Charter began. Commentary on the first draft in 1968 envisioned freedom of conscience as exclusively protecting non-religious persons. This interpretation also appears in early Charter scholarship. Yet since the advent of the Charter in
1982, freedom of conscience has been largely neglected despite the importance ascribed to it in the first Supreme Court of Canada decision on s. 2(a). This neglect inspired Mary Anne Waldron 61 to call freedom of conscience the “forgotten” human right in Canada.197 Only one lower court decision in Canada – one which concerns vegetarianism – has been rendered on the basis of freedom of conscience. Unlike religion, prohibition of discrimination based on conscience is absent in the human rights legislation of most Canadian provinces and territories and conscience is not enumerated in s. 15 of the Charter as a prohibited ground of discrimination.
Yet there is reason to believe that freedom of conscience in s. 2(a) can play a meaningful role. In Morgentaler, Wilson J. proposed a division of labour between conscience and religion.
Freedom of conscience, she opined, “should be broadly construed to extend to conscientiously- held beliefs, whether grounded in religion or in a secular morality.”198 In Amselem the majority distinguished “beliefs, convictions and practices rooted in religion” (protected by freedom of religion) from those that are, inter alia, “conscientiously held” (protected, perhaps, by freedom of conscience).199 Morgentaler and Amselem present different understandings of freedom of conscience: the first protects conscientious beliefs regardless of inspiration and the second protects conscientious beliefs grounded in non-religious sources. Most recently, two of the judgments in
Hutterian Brethren imply an independent contribution of freedom of conscience in relation to the other fundamental freedoms in s. 2 of the Charter. The nature of this contribution – what freedom of conscience protects – remains up for grabs. It is to that matter that I now turn.
197 Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013). 198 Morgentaler, supra note 158 at 179. 199 Amselem, supra note 163 at para 39. 62
Chapter 2 – Defining Freedom of Conscience (and Religion)
Introduction...... 62 I. A Primer on Conscience ...... 63 Origins ...... 64 Plato & Aristotle ...... 66 Medieval Conscience ...... 68 Reformation Conscience ...... 72 Towards Secular Conscience ...... 74 II. Interpreting Freedom of Conscience ...... 76 Other Bills of Rights ...... 76 The Charter ...... 81 Freedom of Religious Conscience ...... 83 Freedom of Secular Conscience ...... 86 Freedom of Moral Conscience ...... 88 The Scope of Freedom of Conscience ...... 93 Collective Conscience? ...... 95 III. What about Freedom of Religion? ...... 97 Conclusion ...... 103
Introduction
In this chapter, I make a normative argument: freedom of conscience in s. 2(a) should be interpreted as protecting the freedom to live in alignment with moral judgments, whether the judgments are inspired by religious or non-religious formation. Freedom of conscience is, I submit, about action. It does not pertain to the internal forum. I argue that this interpretation is faithful to statutory interpretation principles and to the ordinary understanding of “conscience”. The difficulty in sustaining the position that freedom of conscience protects either religious or secular conscience (but not both) is most apparent where the religious person and the irreligious person 63 share the same conscientious conviction. Why should the judgment that war is immoral be protected under freedom of religion for the Mennonite and under freedom of conscience for the secular pacifist? The “bottom line” – the moral judgment – is the same for both persons. There is no logical reason why different Charter freedoms should protect the same moral judgment.
If freedom of conscience protects moral judgments of all sorts and from all sources, what does that mean for freedom of religion? I argue that freedom of religion protects faith-based
(religious) beliefs and practices. The Christian who believes that Jesus Christ is the Son of God does not hold this belief because of a moral judgment. Rather, he or she holds this belief as an article of faith. Similarly, the Catholic who wears a crucifix does not do so because of an underlying moral judgment. He or she wears the crucifix in order to manifest a faith-based belief.
This chapter proceeds as follows. I first provide a primer on how conscience has been interpreted in Western philosophy, with a focus on the classical, scholastic, and Enlightenment movements. I then assess how freedom of conscience has been interpreted in bills of rights other than the Charter and, after outlining the relevant principles of statutory interpretation, interpret freedom of conscience in s. 2(a). Finally, I describe how the interpretation of freedom of conscience that I endorse affects freedom of religion in s. 2(a).
I. A Primer on Conscience
What is conscience? Over the centuries, conscience has been the subject of much scholarship and debate. While it is beyond the scope of this thesis to provide a comprehensive account of conscience, a basic understanding of this concept is a prerequisite for attempting to understand “freedom of conscience” in s. 2(a) of the Charter. Views on matters such as the nature of conscience and how it operates have evolved over time, but the close connection between conscience and assessing the morality of conduct has endured. 64
Origins
The word “conscience” traces to the Latin conscientia, and is related to the Greek synderesis.1 While it is often thought that conscience arrived with Christianity, it was already a
“flourishing concept in Roman persuasive oratory and legal pleading well before the birth of
Christ.”2 As early as the fifth century before Christ, conscience (understood as moral self- awareness in a broad sense) appeared in the works of Roman and Greek playwrights.3 The Roman understanding of conscience related to “public or social opinion”; persons at odds “with public opinion or social consensus found themselves vulnerable to the accusations of conscience and to conscience’s pangs.”4 In the third and second centuries before Christ, respectively, the Roman comic playwrights Plautus and Terence describe conscience as sharing knowledge with oneself.5
This notion reflects the Latin con (with) + scientia (knowledge). In the first century before Christ,
Cicero referred to “a conscience that shares knowledge of one’s own merit” with respect to individuals “being practitioners of noble and good works.”6
Turning to the Christian engagement with conscience, Saint Paul notes in his epistle to the
Romans that when Gentiles (non-Jews) follow God’s law, they “show that what the law requires is written on their hearts, while their conscience also bears witness”.7 This statement suggests an
“inward looking character of conscience”; conscience “does not allow us to acquire the knowledge
1 Online Etymology Dictionary, “Conscience”, online:
The epistles of Saint Paul in the New Testament use synderesis while the later fourth century Latin translation by Saint Jerome uses conscientia. The Latin and Greek have a double meaning of “either the state (or act) of sharing knowledge or else simply knowledge, awareness, apprehension – even something like mind or thought.”9 While the double meaning is contained in the French “conscience”, it is “broken up” in modern English between “consciousness” – “the notion of awareness or apprehension” – and “conscience”, which is “connected with a type of knowledge: typically the knowledge of what an individual should do.”10 The idea of “conscience” as sharing of knowledge with oneself or with others is virtually non-existent today. The common understanding of conscience today is that it pertains to moral action. The reason for this change, according to Douglas Langston, “involves several historical departures from the medieval view of conscience.”11 As this primer will demonstrate, conscience was once understood “as an aspect of practical reason” concerning “the development and cultivation of the virtues” but later “became regarded as a faculty of the human mind” (like the intellect and will), and its “principal functions were to represent to the individual the universal laws of moral behaviour, apply them in specific cases, and punish the individual for going against them.”12
8 Stanford Encyclopedia of Philosophy, “Conscience” (14 March 2016), subsection 3.1, online:
Plato & Aristotle
Plato queried “whether virtue can be taught”, and his engagement with this issue
“influenced medieval discussions of conscience.”13 In Protagoras, the two persons in dialogue –
Protagoras and Socrates – conclude that virtue is a form of knowledge and, like knowledge, teachable. This is so even though not all children of virtuous men are virtuous (the expectation being that virtuous men would teach this form of knowledge to their children). In Meno, however,
Socrates seems to conclude that virtue is a divine gift.
Regardless of whether virtue is teachable, Socrates concludes that virtue betters a person and so it is worthy of pursuit. He concludes that if virtue is “a quality of the soul, and is admitted to be profitable, it must be wisdom or prudence, since none of the things of the soul are either profitable or hurtful in themselves, but they are all made profitable or hurtful by the addition of wisdom or of folly.”14 The bottom line is that if “virtue is profitable, virtue must be a sort of wisdom or prudence”.15 For Langston, Plato’s work suggests that while virtue is a “form of wisdom, wisdom is not to be seen as knowledge” – and while knowledge can lead to virtue, it “is usually achieved through right opinion about the affairs of the state.”16 For Plato, it appears that
“cultivation of the virtues requires activity in the world and is tied to experience.”17
Aristotle, like Plato, was also concerned with virtue and right opinion. In Nicomachean
Ethics, Aristotle argues that everything is directed towards the good, including human beings. The key question, then, is: what constitutes “the good”? To this question, Aristotle answers
“happiness”. He dismisses concepts like pleasure, honour, or wealth as being constituent elements
13 Ibid at 10. 14 Plato, Meno, online:
Aristotle identifies two types of virtues: intellectual and moral. Whereas the intellectual virtues may be taught, the moral virtues are achieved through practice.20 Aristotle identifies
“courage, temperance, liberality, magnificence, pride, good temper, friendliness, truthfulness, shame, and justice” as moral virtues.21 Whereas Aristotle believes there are only five intellectual virtues (scientific knowledge, intuition, art, practical wisdom, and philosophical wisdom), it is unclear whether his list of moral virtues is exhaustive.
For Aristotle, the intellectual virtue of practical wisdom is necessary for the development of the other virtues. Aristotle defines “virtue” as a “state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it”.22 The “mean” to which he refers is a state “between excesses and deficiencies” and “what constitutes a virtue is what gets one to the state of practical wisdom” (which itself is an intellectual virtue).23 The person who possesses practical wisdom “can deliberate well about that which leads to the good life in general.”24 Langston argues that practical wisdom, for Aristotle, “seems to consist, in large part of the right rules for each of the moral virtues” – the person “of practical wisdom knows in a rough
18 Ibid at 14. 19 Aristotle, Nicomachean Ethics, Book I.7, online:
The key distinction between Aristotle and Plato on virtue relates to practical wisdom.
While Plato “suggests that there can be universal rules of behavior that can be taught and, if followed, lead one to the end of human activity”, Aristotle “thinks there are no such rules.”26
Factors such as “luck, fate, and even individual differences among human beings” make it impossible to create these rules.27 The best humans can do is to develop practical wisdom, which
Aristotle seems to view as “more of a learned skill than a science” and which “itself is developed from a cultivation of the virtues.”28 The alternative is a failure to cultivate virtues, a subsequent lack of practical wisdom, and weakness of will.
While Plato and Aristotle never use the word conscience in their works, their “discussions of the virtues, practical wisdom, and weakness of will” serve as the “critical backdrop to medieval discussions of conscience and their contributions to a viable view of conscience.” 29 Their work – especially that of Aristotle – would have a profound impact on how conscience came to be understood by influential medieval scholars such as Thomas Aquinas.
Medieval Conscience
Aristotle and Plato were not the only influences on late medieval views of conscience.
Theologian Peter Lombard’s presentation of conscience and synderesis in The Four Books of
Sentences was also influential.30 Lombard, who died in 1160, cites Saint Jerome’s interpretation
25 Ibid at 16-17. 26 Ibid at 17. 27 Ibid. 28 Ibid. 29 Ibid at 9. 30 Stanford Encyclopedia of Philosophy, “Medieval Theories of Conscience” (23 November 1998), online: < https://plato.stanford.edu/entries/conscience-medieval/>. 69 of the prophet Ezekiel’s vision of four creatures emerging from a cloud, each in the form of a man but with four faces: the front was a human, the right a lion, the left an ox, and the back an eagle.31
Jerome identifies the eagle as representing that “which the Greeks call synteresis: that spark of conscience which was not even extinguished in the breast of Cain after he was turned out of paradise, and by which we discern that we sin, when we are overcome by pleasures or frenzy and meanwhile are misled by an imitation of reason”.32 Lombard believed that synderesis and conscience were distinct, given Jerome’s statement that synderesis is never extinguished and a statement elsewhere that an evil person ceases to have a conscience. It is not clear if Jerome intended this distinction, but the perception that he did “plays a major role in late medieval discussions of conscience.”33 These discussions gave rise to two competing understandings of conscience in that era, each of which treat the relationship between conscience and synderesis differently: the first is voluntaristic (Bonaventure) and the second is intellectualistic (Aquinas).
For Bonaventure, synderesis and conscience are found in different locations and have different functions. In his Commentary on the Sentences, he places conscience “squarely within the rational faculty, specifying that it is part of practical reason because it is connected to the performance of actions.”34 He places synderesis in the “affective part of human beings, for he regards synderesis as that which stimulates us to the good.”35 He divides conscience into two parts:
(i) an unerring and innate “power for discovering the truth of very general practical principles”
(such as “obey God”, “honour your parents”, and “do not harm your neighbour”) and (ii) the
31 The Holy Bible, supra note 7 at Ezekiel 1:4-14. 32 Timothy Potts, “Conscience”, in Norman Kretzmann, Anthony Kenny, & Jan Pinborg, eds, The Cambridge History of Later Medieval Philosophy (Cambridge: Cambridge University Press, 1982) 687 at 689. 33 Langston, supra note 10 at 9. 34 Ibid at 25. See Bonaventure, Commentary on the Sentences, in Leonardi M Bello, ed, Opera Theologica Selecta (Florence: Ad Claras Aquas, 1934). 35 Langston, supra note 10 at 25. 70
“application of the very general principles to situations that may be either general or particular”.36
Langston describes the first aspect as “potential conscience” and the second aspect as “applied conscience”.37 Potential conscience is never eradicated, no matter how immoral a person may become.38 Applied conscience, like potential conscience, is innate but can err by misapplying the very general principles to specific situations.39 On the conscience-synderesis relationship,
Bonaventure (like Saint Jerome) describes synderesis as the “spark of conscience” – in other words, it serves as the “general drive to do good” (and to avoid evil).40
Thomas Aquinas, unlike Bonaventure, situates synderesis and conscience in the same location. Aquinas defines conscience as the “application of knowledge to activity” – a matter of rational deliberation.41 The (moral) knowledge to which Aquinas refers derives from synderesis, which he situates in “the rational part of human agents” and describes as a “natural disposition of the human mind by which we apprehend without inquiry the basic principles of behavior”.42 Once humans grasp these basic principles of behaviour, conscience – also located in the rational part – applies them to particular situations.43 In other words, while conscience refers to the application of our moral knowledge to particular situations, synderesis refers to the moral awareness built into each person which urges us to do good and to avoid evil. Aquinas views synderesis as unerring and the principles it grasps as true. Humans commit evil when conscience errs “in its applications of synderesis through invalid reasoning or by joining a first principle with a false premise and
36 Ibid at 25-26. 37 Ibid at 26. 38 Ibid. 39 Ibid. 40 Ibid at 29-30. 41 Thomas Aquinas, Summa Theologiae, I-II, question 19, article 5, online (at 2716):
The Thomistic theory of conscience has Aristotelian roots. The link between Aquinas and
Aristotle appears where Aquinas draws a “close connection among conscience, synderesis, the virtues, and weakness of will.”46 Aquinas emphasized the relation of the virtue of prudence to conscience. While synderesis gives “general moral principles” that are “rather empty” (eg, “Do good and avoid evil”), more specific moral principles must be nurtured by each person for these general moral principles to be applied to daily activity.47 These specific moral principles, in other words, concretize the general moral principles.
In his commentary on Aquinas, Daniel Nelson argues that these specific moral principles are developed through the virtue of prudence.48 It appears that, for Aquinas, “prudence works in tandem with conscience and synderesis”.49 Synderesis signals the general moral principles, prudence develops specific moral principles that fill up the general ones, conscience applies moral knowledge – general and specific – to human activity, and prudence facilitates obedience of what conscience dictates. Noah Feldman writes that Aquinas “took the idea of conscience from the
Christian tradition and grounded it in his Aristotelian scheme of the human intellect.”50 He
44 Ibid at 40. 45 Ibid. 46 Ibid at 44. 47 Ibid at 42-43. 48 Daniel Nelson, The Priority of Prudence: Virtue and Natural Law in Thomas Aquinas and the Implications for Modern Ethics (University Park: The Pennsylvania State University Press, 1992) at 101. 49 Langston, supra note 10 at 43. 50 Noah Feldman, “The Intellectual Origins of the Establishment Clause” (2002) 77:2 NYUL Rev 346 at 356. 72 describes Thomistic conscience as “an act of judgment, or practical reason, performed by the rational part of the soul to determine whether an action was good or bad” – these acts of judgment are “derived from a person’s innate knowledge of the natural law.”51 His contribution to conscience is significant: Aquinas “gave the idea of conscience the basic philosophic form that it maintained through the Middle Ages and well into the seventeenth century.”52
Reformation Conscience
Martin Luther, a key leader of the 16th century Protestant Reformation, developed what some have called “Reformation conscience”.53 Luther differed from late scholastics like Aquinas insofar that he moved “conscience from the framework of practical reason concerned with the value of particular actions” to “understanding it as judging the whole person, particularly the state of damnation.”54 Luther denied the existence of synderesis and “established a new object for the working of the conscience: its judgments are not just about actions” but “it also judges about the agent who performs these actions”.55 John Calvin, another Reformation leader, also believed that conscience evaluated “whether the individual was saved or damned.”56 For Calvin, then, conscience has an inherent religious dimension. The key difference between Luther and Calvin is what salvific effect this evaluation might have. While Luther believed that the evaluation “might spur one to faith and salvation”, Calvin believed it could “not effect a change in the individual’s state, because whether one was saved or damned was already predetermined by election.”57
51 Ibid. 52 Ibid. 53 Strohm, supra note 2 at 22. 54 Langston, supra note 10 at 76. 55 Michael G Baylor, Action and Person: Conscience in Late Scholasticism and the Young Luther, Studies in Medieval and Reformation Thought, Vol. 20 (Leiden: EJ Brill, 1977) at 201-2. 56 Feldman, supra note 50 at 359. 57 Ibid. 73
Luther believed that Christ, by his self-sacrifice, had “liberated the faithful from the duty to obey the temporal law” as well as “from sin, in the sense that his sacrifice atoned for their sins and allowed them salvation despite their sinfulness.”58 Luther viewed this “Christian liberty” from sin and from temporal law as having “liberated the conscience from the duty to obey the ceremonial law and from the condemnation of the faithful for sin when that sin had been forgiven.”59 A person’s conscience was subject only to God’s law – where human law conflicted with God’s law, the individual should follow God. Luther denied any role of institutional religious authorities in forming an individual’s conscience; the aids to forming conscience were restricted to Scripture and reason. Luther, on one occasion, refused “to go against conscience”, which he described as
“captive to the word of God”, unless he were “convinced by the testimony of Scriptures or by clear reason” – a matter for each person to determine.60 As Feldman puts it, if it is “sinful to act against conscience, and if the individual himself could determine the content of conscience based on scripture and reason, then the stage was set for the argument that the individual conscience was a matter purely for the individual.”61
Reformation conscience may not constitute a complete rupture from medieval conscience.
Langston argues that Luther’s “focus on the person” as the object of conscience flowed from the
“turn to the virtues” by scholastics like Scotus and Ockham.62 These scholars asserted that the
“development of the virtues” is “fundamentally geared toward the development of the person”, which amounts to a “transformation of the individual.”63
58 Ibid at 357. 59 Ibid at 357-358. 60 Baylor, supra note 55 at 1, translating Martin Luther, Lectures on Hebrews 2:15, in Martin Luther, D Martin Luthers Werke: kritische Gesammtausgabe (Weimar, H Böhlau, 1883) WA 57 at 838. 61 Feldman supra note 50 at 359. 62 Langston, supra note 10 at 77. 63 Ibid. 74
Luther’s most enduring contribution to conscience may be understanding it as “an independent entity” or faculty within persons like the will or the intellect – an easier task if conscience “is no longer through of as part of a process (of practical reason) and is viewed as something like a judge of the whole person.”64
Towards Secular Conscience
In the late seventeenth century, conscience disassociated itself from organized religion.
Protestant scholars such as Luther and Calvin, who gave primacy to individual conscience uninfluenced by the Catholic Church, paved the way to this destination. The “un-churching” of conscience sprung from an increasing tolerance for various religious beliefs.65 On the historical origins of “freedom of conscience and religion” in s. 2(a) of the Charter, Dickson J. of the Supreme
Court of Canada noted in Big M Drug Mart that post-Reformation laws “aimed at enforcing conformity to religious beliefs and practice” were increasingly viewed as being “not amenable to compulsion”.66 Such laws and the attempts they made “to compel belief or practice denied the reality of individual conscience and dishonoured the God that had planted it in His creatures.”67
John Locke was a principal proponent of understanding freedom of conscience as a “natural right”. In his 1689 Letter Concerning Toleration, Locke argued that “sectarian jealousies”68 in
England at the time would only be resolved if “churches were obliged to lay down toleration as the foundation of their own liberty, and teach that liberty of conscience is every man’s natural right, equally belonging to dissenters as to themselves.”69 Paul Strohm notes that while Locke
64 Ibid. 65 Strohm, supra note 2 at 39. 66 R v Big M Drug Mart, [1985] 1 SCR 295 at 344-346, 18 DLR (4th) 321 [Big M Drug Mart]. 67 Ibid. 68 Strohm, supra note 2 at 39. 69 John Locke, A Letter Concerning Toleration, online:
“creates a structure for the proper exercise of conscience within a community governed by civil law; a structure that allows for a view of conscience as divinely prompted, but does not insist upon such promptings in order to be recognized as conscience.”71
In his 1690 Essay Concerning Human Understanding, Locke argued that conscience is governed by the exercise of reason. While he does not deny that moral knowledge may be divinely inspired or illuminated, the moral knowledge that a person invokes must be evaluated by reason.
According to Locke, “without being written on their hearts, many men may, by the same way that they come to the knowledge of other things, come to assent to several moral rules, and be convinced of their obligation.”72 Others “also may come to be of the same mind, from the education, company, and customs of their country.”73 However individuals learn and accept moral knowledge, assent to moral rules “will serve to set conscience on work, which is nothing else but our own opinion or judgment of the moral rectitude or pravity of our own actions.”74
On Locke’s contribution to conscience, Strohm argues that for “the first time since the
Romans, conscience is the back in the world, and its principal supports are custom, consensus, and the exercise of reason.”75 Locke’s emphasis on the role of reason in relation to conscience may find expression in Article 1 of the Universal Declaration of Human Rights, which declares that all
freedom of conscience is informed by his support for robust tolerance of religious evangelism: see Teresa M Bejan, “Evangelical Toleration” (2015) 77:4 J Politics 1103-1114. 70 Strohm, supra note 2 at 39. 71 Ibid at 40. 72 John Locke, An Essay Concerning Human Understanding (Philadelphia: Kay & Troutman, 1846) at 54 (Book I, Chapter III, Section 8). 73 Ibid. 74 Ibid. 75 Strohm, supra note 2 at 42. 76 persons “are endowed with reason and conscience”.76 Noah Feldman argues that, in the United
States, Locke’s understanding of liberty of conscience was the “central value invoked by the states that proposed constitutional amendments on the question of religion, and the purpose that underlay the Establishment Clause when it was enacted.”77
For centuries, matters such as how a person attains moral knowledge, the consequences of following an errant conscience, and the location or nature of conscience (among other conscience- related issues) have been matters of great debate. This history reveals, however, that it is uncontroversial to say that each person has a conscience or that conscience pertains to moral knowledge and its application to individual action (the exception may be “Reformation conscience”, which is more concerned with whether a person is saved or damned before God).
Religion and conscience have remained in close proximity to each other over the centuries, but that proximity has not prevented scholars from affording independent meaning to conscience.
II. Interpreting Freedom of Conscience
Before interpreting freedom of conscience in s. 2(a) of the Charter, I will briefly consider how this freedom is interpreted in other bills of rights.
Other Bills of Rights
Most “liberal-democratic constitutions distinguish at least verbally between freedom of conscience and freedom of religion”.78 As in the Charter, many bills of rights that protect both of these freedoms do so in the same clause. International examples include the United Nations
76 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, art I [UDHR]. 77 Feldman, supra note 50 at 351. 78 Daniel Weinstock, “Conscientious Refusal and Health Professionals: Does Religion Make a Difference?” (2014) 28:1 Bioethics 8 at 9. 77
Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR), and the International Covenant on Civil and Political Rights (ICCPR). As Richard Haigh puts it, the
“language of s. 2(a) of the Charter owes a debt to these international human rights documents.”79
Besides Canada, states that protect freedom of conscience in their constitutional bills of rights include New Zealand, South Africa, Germany, Ireland, South Korea, Japan, and India. There are some notable exceptions, such as the United States.80
While the US Constitution does not mention freedom of conscience, there is evidence that it significantly influenced its First Amendment. The First Amendment begins with the declaration that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.81 As mentioned earlier, John Locke’s view of liberty of conscience greatly influenced the First Amendment. Explicit protection for conscience appeared in earlier drafts of the First Amendment and while it is not definitively known why conscience did not make the final cut, the “widely drawn implication is that the Free Exercise and Establishment clauses were presumed to cover the necessary ground.”82 The absence of “conscience” may be explained by how the drafters understood freedom of conscience: “the freedom to abide by one’s religious beliefs”.83 In the “founding era” of the United States, freedom of conscience “dominantly referred to individual religious liberty.”84 In other words, freedom of conscience was subsumed by freedom of religion. In a 1983 decision of the US Supreme Court, the majority held that, by virtue of the
Free Exercise Clause, “religiously motivated claims of conscience may give rise to constitutional
79 Richard A Haigh, A Burl on the Living Tree: Freedom of Conscience In Section 2(a) Of The Canadian Charter of Rights and Freedoms (SJD Thesis, University of Toronto, 2012) [unpublished] at 53. 80 The Constitutions of these (and many other) countries can be found at Comparative Constitutions Project (University of Texas at Austin), “Constitute Project”, online:
US Constitution against the establishment of religion by state authorities.86
Today in America, freedom of conscience is still understood as privileging religious conscience. The title of Martha Nussbaum’s 2008 book – “Liberty of Conscience: In Defense of
America’s Tradition of Religious Equality” – indicates as much. This understanding has also appeared in Canadian jurisprudence. Dissenting in Amselem, Bastarache J. described religion as
“first and foremost, a question of conscience.”87 The European Court of Human Rights, for its part, has described “religious freedom” as being “primarily a matter of individual conscience”.88
Moving to international human rights instruments, commentary on Article 18(1) of the
ICCPR indicates some division of labour between freedom of conscience and related human rights.
Article 18(1) guarantees “the right to freedom of thought, conscience and religion”, which includes
“freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”89 The UN Human Rights Committee has determined that
Article 18(1) is “far-reaching and profound.”90 Michael Perry argues that Article 18(4) indicates that Article 18 as a whole protects religious and moral freedom: “The States parties … undertake to have respect for the liberty of parents and, when applicable, legal guardians to assure the religious and moral education of their children in conformity with their own convictions.”91 Perry
85 Marsh v Chambers, 463 US 683 at 812, 103 S Ct 3330 (1983). 86 See Kermit L Hall, ed, Conscience and Belief: The Supreme Court and Religion (New York: Garland Pub, 2000). 87 Syndicat Northcrest v Amselem, 2004 SCC 47 at para 140, [2004] 2 SCR 551 [Amselem]. 88 Kokkinakis v Greece (1993), ECHR (Ser A) 20 at para 31, (1994) 17 EHRR 397. 89 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 18 [ICCPR]. 90 UN Human Rights Committee, CCPR General Comment No 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4 (48th Sess, 30 July 1993) [General Comment No 22]. 91 ICCPR, supra note 89 at art 18.4 (emphasis added). 79 argues that Article 18 protects “not only freedom to practice one’s religion, including, of course, one’s religiously based morality; it also protects freedom to practice one’s morality … even if one’s morality is not embedded in a religious tradition.”92 The UN Human Rights Committee has concluded that Article 18 protects conscientious objection to military service, regardless of whether the objection stems from religion or not.93
There is also relevant commentary on Article 18 of the UDHR, which guarantees “the right of freedom of thought, conscience and religion”, a right which “includes the freedom” of a person to “change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”94
Paul Strohm argues that this reference to “conscience” refers to “matters of inward conviction, rather than to actions taken in the world”.95 Sumner Twiss argues that the “vast majority” of the
Third Committee for the drafting of the UDHR viewed Article 18 “as one of the most important” because, in the Committee’s words, it “ensured the inviolability of that profound part of thought and conscience [i.e., religion]” and the “integrity of individual beliefs making it possible for each to determine his or her destiny”.96 Twiss argues that the Committee viewed the link between conscience and religion as “tightly drawn”.97 The word “conscience” appears elsewhere in the
UDHR: Article 1 declares that “all human beings” are “endowed with reason and conscience” and
92 Michael J Perry, “Freedom of Conscience as Religious and Moral Freedom” (2014) 29:1 JL & Religion 124 at 127. 93 General Comment No 22, supra note 90 at n 12. Also see UN Human Rights Committee, Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea, Comm Nos 1321/2004 and 1322/2004, (2006) 14 IHRR 389 (3 November 2006), which states that Article 18 requires parties to the ICCPR to permit conscientious objection to military service. 94 UDHR, supra note 76 at art 18. 95 Strohm, supra note 2 at 88. 96 Sumner B Twiss, “Freedom of Conscience and Religion: A Brief Reflection” in Anver M Emon, Mark Ellis, and Benjamin Glahn, eds, Islamic Law and International Human Rights Law, (Oxford: Oxford University Press, 2012) 255 at 256. ‘Third Committee’ refers to the Third Social and Humanitarian Committee of the General Assembly, which met and debated the UDHR draft from in the fall of 1948. 97 Ibid at 257. 80 the preamble describes the UDHR as a response to “barbarous acts which have outraged the conscience of mankind”.98 Twiss argues that the framers of the UDHR intended conscience to be a “cross-cultural ‘bridge concepts’ of sorts between different civilizations”.99 More specifically, its inclusion in Article 18 was meant to bridge the Eastern concept of the “heart-mind” connection and the Western concept of “conscience”, both of which the Committee “conceived as referring to the same basic moral capacity.”100
Commentary on freedom of conscience in the ECHR adds little to what has already been said about the ICCPR and UDHR. Article 9 of the ECHR, with similar language to the other instruments, guarantees the “right to freedom of thought, conscience and religion”, which includes the freedom of the individual “to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”101 Freedom of conscience in the ECHR, like the ICCPR, has been found to protect conscientious objection to military service where the objection is “motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs”.102
Aside from academic commentary and jurisprudence, the drafting history of the ICCPR,
UDHR, and ECHR do not identify the independent work done by freedom of conscience. Richard
Haigh concludes that the “deliberation given to conscience” in the drafting of these human rights instruments was “meagre” and in most cases “conscience, if it is mentioned at all, is either referred to as if it were a mere appendage of religion without independent content, or treated as
98 UDHR, supra note 76. 99 Twiss, supra note 96 at 257. 100 Ibid at 257-258. 101 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 art 9(1) (entered into force 3 September 1953) [ECHR]. 102 Bayatyan v Armenia [GC], No 23459/03, [2011] ECHR 1095 at para 110, (2012) 54 EHRR 15. 81 fundamentally the same as religion.”103 The bottom line is that “little can be gleaned from the formal discussions over the wording of each of the UDHR, ICCPR, and [ECHR] provisions to aid an analysis of the nature and scope of the concept of conscience in these human rights documents.”104 As with the Charter, what freedom of conscience protects in isolation from other human rights – notably freedom of religion – remains unsettled.
The Charter
The standard for interpreting Canadian legislation, including the Charter, is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”105
In Rizzo & Rizzo Shoes, the Supreme Court of Canada noted that this approach “recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.”106 The Court relied on a provision in Ontario’s Interpretation Act as some of the legislation under scrutiny emanated from that province. The parallel provision in the federal Interpretation Act, which applies to the Charter, provides that every enactment is “deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”107 The Court has often stated that the Charter deserves “a large and liberal interpretation” that is “purposive”.108 This approach dictates that the meaning of a Charter right or freedom is
“ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other
103 Haigh, supra note 79 at 62. 104 Ibid. 105 Edgar Driedger, Construction of Statutes, 2nd Ed (Toronto: Butterworths, 1983) at 87. The Supreme Court of Canada affirmed this approach in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para 21, 154 DLR (4th) 193 [Rizzo]. 106 Rizzo, supra note 105 at para 21. 107 Interpretation Act, RSC, 1985, c I-21, s 12. 108 B (R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 at 337, 122 DLR (4th) 1. 82 words, in the light of the interests it was meant to protect.”109 The purpose is discovered “by reference to the character and the larger aspects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedom with which it is associated” in the Charter.110
Other principles of statutory interpretation are relevant to interpreting “freedom of conscience” in s. 2(a). The first is that every word in a statute must be given its own meaning. This rule, also called the presumption against tautology, “follows from the assumption that the legislature avoids tautology and that every word of legislation has a sensible reason for being there.”111 In Morgentaler, Wilson J. cited this principle in relation to “freedom of conscience and religion” in s. 2(a). After concluding that s. 2(a) “should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality”, she noted that,
“as a matter of statutory interpretation, ‘conscience’ and ‘religion’ should not be treated as tautologous if capable of independent, although related, meaning.”112
The way in which the “ordinary meaning” rule applies to constitutional legislation is also relevant to interpreting “freedom of conscience” in the Charter. While it is “generally assumed that the meaning of a legislative text is stable” and only changes by repeal or amendment, Canadian courts distinguish in this regard between ordinary legislation and constitutional legislation.113 For the latter, Canadian courts follow the “living tree” approach, which holds that the Constitution is
“a living tree capable of growth and expansion within its natural limits”.114 This “metaphor has
109 Big M Drug Mart, supra note 66 at 344. 110 Ibid. 111 Ruth Sullivan, Statutory Interpretation, 2nd ed (Toronto: Irwin Law, 2007) at 184. 112 R v Morgentaler, [1988] 1 SCR 30 at 179, 44 DLR (4th) 385 [Morgentaler]. 113 Sullivan, supra note 111 at 100. 114 Edwards v Canada (Attorney General), [1930] AC 124 at 136, 1 DLR 98 (JCPC). 83 endured as the preferred approach in constitutional interpretation”,115 ensuring “that Confederation can be adapted to new social realities.”116
How do these principles of statutory interpretation bear on freedom of conscience in s. 2(a) of the Charter? I will apply them to the three major competing interpretations of this freedom: (i) freedom of religious conscience, (ii) freedom of secular conscience, and (iii) freedom of conscience regardless of inspiration.
Freedom of Religious Conscience
Interpreting freedom of conscience in s. 2(a) as protecting exclusively religious conscience
(ie, moral judgments stemming from religious formation or membership in a religious denomination) enjoys little support in Charter jurisprudence. This interpretation appears in a 1985 decision from British Columbia, in which the judge relied on Big M Drug Mart.117 While I do not read Big M Drug Mart as clearly indicating that freedom of conscience protects only religious conscience, the decision is ambiguous as to what independent work conscience does in relation to religion (and vice versa). Interpreting freedom of conscience as only pertaining to religious conscience is understandable given Canada’s history of providing conscience rights to religious denominations, as in the case of conscientious objection to military service. The intimate link between conscience and religion that pervades the pre-Charter history of freedom of conscience in Canada supports the strictly religious interpretation of freedom of conscience.
That said, to interpret freedom of conscience in s. 2(a) as protecting only religious conscience fails to recognize that s. 2(a) protects two distinct interests: conscience and religion. In
115 Reference Re Securities Act, 2011 SCC 66 at para 56, [2011] 3 SCR 837. 116 Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56 at para 9, [2005] 2 SCR 669. 117 In BC (AG) v Bd Of School Trustees of Sc Dist. 65 (Cowichan) (1985), 63 BCLR 130, BCJ No 2934 (SC) at para 13 [cited to BCJ]. 84 other words, this interpretation does not give “conscience” and “religion” independent meaning.
Rather, it interprets s. 2(a) as if it reads “freedom of religious conscience”. I agree with the view that the “inclusion of conscience in s. 2(a) should not be ignored or glossed over” and conscience
“is not an elegant variation of religion, redundant, or superfluous.”118 In order to give s. 2(a) “full meaning”, the word “conscience” must have “independent content.”119 That “conscience” adds something to s. 2(a) is supported by the fact that “conscience” appears in s. 2(a) but not in s. 15 of the Charter, whereas “religion” appears in both provisions.120
Advocates for interpreting freedom of conscience as freedom of religious conscience might invoke the principle of statutory interpretation known as noscitur a sociis. This principle “holds that the meaning of a word can be determined by its association with other words”.121 It is a
“fundamental principle of statutory interpretation that when two or more words linked by ‘and’ or
‘or’ serve an analogous grammatical and logical function within a provision, they should be interpreted with a view to their common features”.122 Accordingly, one might argue that the closeness of “conscience” and “religion” in s. 2(a) means that these words reciprocally influence the meaning of each other in a manner that limits conscience to religious conscience.
This argument overstates the work performed by this principle of statutory interpretation.
This principle does no more than aid in “containing the possibilities of meanings of words by providing a context for understanding”.123 The placement of “conscience” next to “religion” in a
Charter provision indicates some sort of relationship between the two concepts just as the placement of “thought”, “belief”, and “opinion” together in s. 2(b) indicates a connection between
118 Howard Kislowicz, Richard Haigh & Adrienne Ng, “Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom” (2011) 48:3 Alta L Rev 679 at 707. 119 Ibid. 120 Ibid. 121 Ibid. 122 McDiarmid Lumber Ltd v God’s Lake First Nation, 2006 SCC 58 at para 30, [2006] 2 SCR 846. 123 Kislowicz, Haigh & Ng, supra note 118 at 707. 85 those concepts, but it does not make the two concepts “perfectly synonymous”.124 Howard
Kislowicz, Richard Haigh, and Adrienne Ng demonstrate this point with respect to s. 2(a) by citing
Randal Graham’s example of the word “chips” in contrast to the phrase “fish and chips”.125
Standing alone, “chips” could mean wood chips or paint chips, but these interpretations become absurd after adding the word “fish”.
The association of “religion” and “conscience” in s. 2(a) suggests that mundane matters are not the concern of this Charter freedom. Dickson C.J. may have correctly captured the reciprocal effect of “conscience” and “religion” in Edwards Books when he held that the purpose of s. 2(a) is “to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being” – beliefs that, “in turn, govern one’s conduct and practices.”126 Or, as Martha Nussbaum puts it, liberty of conscience (which, in her work, encompasses religion and conscience) pertains to the search for “the ultimate meaning of life”.127 Building on this insight, Jocelyn Maclure and
Charles Taylor distinguish between “core beliefs and commitments, including religious ones” and
“other personal beliefs and preferences” – the former play a role “in individuals’ moral identity” and “sense of moral integrity” whereas the latter do not.128
124 Ibid. 125 Ibid, citing Randal N Graham, Statutory Interpretation: Theory and Practice (Toronto: Emond Montgomery, 2001) at 87. 126 R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at 759, 35 DLR (4th) 1. 127 Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008) at 168. 128 Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience, trans Jane M Todd (Cambridge: Harvard University Press, 2011) at 76. 86
It is worth noting that interpreting freedom of conscience in s. 2(a) as restricted to religious conscience also disregards the drafting history of the Charter.129 It rejects the explicitly stated rationale for including this freedom in the Charter: to protect non-religious persons. While I disagree with the notion that freedom of conscience only protects non-religious persons, I agree that the freedom captures more than the conscientious beliefs of religious persons.
Freedom of Secular Conscience
Interpreting freedom of conscience as protecting only secular conscience understands this human right to protect only conscientious beliefs inspired by non-religious worldviews such as humanism, atheism, agnosticism, and even vegetarianism.130 As for conscientious beliefs inspired by religion, they are protected by freedom of religion. Richard Moon supports this interpretation:
“While freedom of religion protects fundamental religious beliefs, freedom of conscience extends protection to fundamental beliefs that are not part of a religious belief system – to secular morality.”131
While this interpretation succeeds in providing independent meaning to “conscience” and
“religion” in s. 2(a), it betrays the ordinary, common, and historical understanding of conscience.
Bearing in mind the basic rule of statutory interpretation, the notion that “conscience” only concerns non-religious persons disregards the ordinary sense of the word. While philosophers have debated conscience for centuries, no credible school of thought views conscience as exclusively the domain of non-religious persons.
129 The question of what weight should be attached to the drafting history of a Charter provision when interpreting it has not been definitively resolved. There is precedent for considering drafting history: R v Finta, [1994] 1 SCR 701 at 784, 112 DLR (4th) 513. However, there is also precedent for attaching “minimal weight” to the testimony of the drafters of the Charter in respect of the meaning of Charter rights: Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 509, 24 DLR (4th) 536. 130 See Maurice v Canada (Attorney General), 2002 FCT 69, [2002] FCJ No 72. 131 Richard Moon, Freedom of Conscience and Religion (Toronto: Irwin Law, 2014) at 188. 87
Viewing freedom of conscience as benefiting both religious and non-religious persons has received judicial endorsement. In Morgentaler, Wilson J. opined that “conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a).”132 The message is clear: freedom of conscience protects conscientious beliefs motivated either by religious or non-religious sources. While conscience is often interwoven with religion, the comments of Wilson J. in Morgentaler reflect the common understanding that everyone has a conscience. Article 1 of the UDHR declares that all “human beings” are “endowed with reason and conscience”.133 Were s. 2(a) to depart from this common understanding of “conscience” contained in a major human rights instrument that influenced the Charter, one would have expected an explicit statement by the drafters that such a departure was being made.
Proponents of interpreting freedom of conscience as freedom of secular conscience might refer to Pierre Trudeau’s statement in the first draft of the Charter that this freedom should be included in the Charter to protect non-religious persons. On this point, context is important.
Trudeau’s proposal stemmed from his concern that freedom of religion would not capture the secular belief systems of non-religious persons or the freedom to have no religion or belief system.
He held this concern due to jurisprudence that upheld Sunday closing laws on the basis that they did not offend the religious freedom of non-Christians under the Canadian Bill of Rights (which did not protect freedom of conscience). Trudeau thought that legal protection of freedom of conscience would have led to a different result in these cases. That said, neither Trudeau nor any other drafter of the Charter suggested that freedom of conscience would not protect a religious person’s conscientious beliefs. While freedom of conscience was included to protect non-religious persons, this did not exclude religious persons from the benefit of this freedom.
132 Morgentaler, supra note 112 at 178 (emphasis added). 133 UDHR, supra note 76 at Art 1. 88
Freedom of Moral Conscience
If “conscience” protects acts or omissions based on moral judgments, the error in interpreting freedom of conscience as protecting either religious conscience or non-religious conscience (but not both) is that it protects moral judgments differently depending on their inspiration. I endorse the third interpretation of freedom of conscience, which posits that the freedom protects moral judgments regardless of source.134 While it has been difficult for philosophers to define what conscience is, there has been less difficulty in describing what conscience does. The basic and uncontroversial idea is that a person’s conscience indicates to that person what, in a given situation, is the moral course of action. What a person’s conscience signals in a given situation will depend on many factors. As most major religions make moral claims, religious formation often influences what a religious person’s conscience will indicate. That said, non-religious worldviews such as humanism also make moral claims. If conscience concerns moral judgments, there is no logical reason to place moral judgments inspired by religious formation under the protection of freedom of religion and moral judgments inspired by non-religious sources under freedom of conscience.
The flaw in the bifurcated approach reveals itself when a non-religious person and a religious person share the same moral judgment. Imagine if a government were to impose conscription without providing an exemption for persons who are conscientiously opposed to participating in armed conflict. Would the Mennonite and the secular pacifist, who share a moral judgment against bearing arms, invoke freedom of religion and freedom of conscience respectively? They might, but this approach disregards the fact that the Mennonite and the secular pacifist share the same moral judgment – the bottom line is the same for both persons. I suspect
134 For the purposes of this discussion, I consider ethical judgments to fall within the scope of moral judgments. 89 both would describe their views as matters of conscience even though they arrived at their moral judgments by different paths. If so, it is logical to ground both claims in freedom of conscience.
Assuming, for the sake of argument, that the Mennonite could elect between a religion or conscience claim in this scenario, I do not expect that it would be harder for the Mennonite to satisfy the test for a breach of s. 2(a) under one of “conscience” or “religion”. While justifying breaches of freedom of conscience under s. 1 of the Charter will be discussed in a later chapter, what if the Mennonite’s “religion” claim is defeated by s. 1 and the secular pacifist’s “conscience” claim is not (or vice versa)? This result is troubling given that the bottom line – the moral judgment
– is the same. Protecting moral judgments regardless of inspiration through the same Charter freedom is a sensible way of avoiding such an outcome.
Understanding freedom of conscience as protecting all moral judgments envisions the freedom as “moral freedom”, to borrow Michael Perry’s term.135 Perry canvases how freedom of conscience has been interpreted in various bills of rights and cites the Supreme Court of Canada’s statement of the purpose of s. 2(a) in Edwards Books for the proposition that freedom of conscience is “a broad right that protects freedom to practice one’s morality without regard to whether one’s morality is religiously based.”136
Freedom of conscience – understood as moral freedom – recognizes that moral reasoning is central to the human experience. Daniel Weinstock, in distinguishing “conscience” from
“religion” in s. 2(a), argues that freedom of conscience “refers to the citizen as a moral being capable of reflecting upon the difficult moral questions that she must face in the different roles she occupies” in life.137 Weinstock says this capacity is “evinced in part by her ability to reflect upon
135 Perry, supra note 92. 136 Ibid at 128. 137 Weinstock, supra note 78 at 9. 90 moral issues and controversies that arise in her community or elsewhere and arrive at judgments about what the right thing to do is in such controversies.”138 In short, for Weinstock, freedom of conscience refers to a citizen’s “capacity for independent moral judgment.”139
The term “moral freedom” does not, however, fully answer what is meant by “conscience” in “freedom of conscience”. Nathan Chapman argues that “conscience” in bills of rights refers to a “universal faculty that applies moral knowledge to one’s past and future acts, a moral judge”, and “relies on a conventional, nontechnical conception of ‘moral’ – what one ought to do.”140 John
Locke advanced this understanding of conscience. As discussed earlier, he viewed conscience as an “internal moral judge that may be influenced by one’s moral communities and beliefs, whether religious or not”.141 While Locke’s “theory of religious toleration” was “based on theological principles, namely the protestant belief that individuals have the authority and duty to determine what is necessary for eternal salvation”,142 his Essay on Human Understanding offers “a nuanced conception of conscience” as well as its “relationship to religion, education, and culture.”143
According to Locke, “moral principles” are not innate but “require reasoning and discourse, and some exercise of the mind, to discover the certainty of their truth.”144 In other words, conscience
“makes moral judgments, but it is not an innate source of uniform moral rules.”145 For Locke, a person’s conscience makes these judgments based on knowledge that one already has, “whether that knowledge is based in revelation or not.”146
138 Ibid. 139 Ibid at 10. 140 Chapman, supra note 83 at 1463. 141 Ibid at 1489. 142 Ibid at 1464-1465. 143 Ibid at 1489. 144 John Locke, supra note 72 at 51 (Book I, Chapter III, Section 1). 145 Chapman, supra note 83 at 1489. 146 Ibid at 1490. 91
If “conscience” in “freedom of conscience” is viewed as a moral judge or a faculty that signals what one ought to do (or not do), it is easier to disentangle conscience from religion.
Chapman argues that this conception of conscience – as “a universal faculty that applies moral knowledge to concrete situations” – is “obviously discrete from religion.”147 Conscience “issues judgments on past actions and issues commands with respect to contemplated future actions”; conscience is not “a source of moral law, but it applies knowledge” regardless of whether that knowledge is divinely shaped or inspired.148 On this view, “conscience and religion would overlap, not overlay.”149 Religion “may include beliefs that require no action, actions that require no moral judgment”, and “actions that cut against conscience’s ‘natural’ or ‘ordinary judgment’.”150
Conscience “requires no religious beliefs”, for it is “an exercise of moral judgment – whether informed by religious beliefs or not.”151
I adopt this understanding of conscience to interpret freedom of conscience because, in my view, it reflects the ordinary sense of the word. Conscience is ordinarily understood to signal what one morally ought to do or not do in a present situation or what one morally ought to have done or not done in a past situation. This ordinary understanding is reflected in dictionary definitions of
“conscience”. The Oxford English Dictionary defines “conscience” as the “internal acknowledgement or recognition of the moral quality of one’s motives and actions; the sense of right and wrong as regards things for which one is responsible; the faculty or principle which judges the moral quality of one’s actions or motives.”152
147 Ibid. 148 Ibid. 149 Ibid at 1491. 150 Ibid, citing Dietrich Bonhoeffer et al, Ethics: Dietrich Bonhoeffer Works (Minneapolis: Fortress Press, 2005). 151 Ibid. 152 Oxford English Dictionary Online, sub verbo “conscience”, online:
There is an important distinction to be made, however, between whether freedom of conscience protects both the right to hold moral beliefs and the right to act on these moral beliefs.
I submit that freedom of conscience is likely concerned exclusively with action for three reasons.
First, scholarship on conscience has overwhelmingly focused on the morality of action. Second, this understanding of freedom of conscience accords with the common understanding of conscience. While conscience is “connected to belief”, as Mary Anne Waldron puts it, it “is a moral judgment about right and wrong that compels the actor to do something or to avoid doing something”: to do good and to avoid doing evil.153 Third, as a matter of textual interpretation, moral beliefs – as opposed to actions – would seem to fit more comfortably under s. 2(b) of the
Charter, which protects (among other things) freedom of thought, belief, and opinion.
Notably, in most international human rights instruments, freedom of thought is protected in the same provision as freedom of conscience and freedom of religion. The influence of these instruments on the Charter may explain why, as I mentioned in Chapter 1, drafters of the Charter initially proposed to protect thought alongside conscience and religion. While freedom of thought is beyond the scope of this thesis, this human right deserves further study. It is, like freedom of conscience, a forgotten human right.154 For the purposes of this thesis, it seems sufficient to suggest that the domain of freedom of thought is the internal forum (thoughts), while freedom of conscience deals with the external forum (action).
The fundamental point of this section – and a fundamental point of this thesis – is the idea that freedom of conscience protects the freedom of individuals to live in accordance with their moral judgments, regardless of how and where those judgments were formed. Moral judgments
153 Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013) at 196. 154 Dwight Newman, “Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms” (2019) 85 SCLR ____ (forthcoming). 93 formed within a religious tradition and moral judgments formed elsewhere are, in my view, equally protected by freedom of conscience. Based on this interpretation of freedom of conscience, certain questions concerning the scope of this freedom must be confronted.
The Scope of Freedom of Conscience
What are the outer limits of what freedom of conscience protects? John Rawls conceived of freedom of conscience as a broad right that (somehow) protects religion, philosophy, and morality. Nathan Chapman argues that Rawls “blurs the line between the three concepts, rendering conscience so vague that it could encompass virtually any strongly held belief about anything, leaving religion with little independent meaning.”155 Some authors query whether freedom of conscience would be given such a broad meaning, particularly after the Supreme Court of Canada held in Amselem that freedom of religion encompasses obligatory and non-obligatory religious practices. Does this approach have any bearing on freedom of conscience?
The notion that freedom of conscience would protect non-binding judgments is favoured neither by scholars nor courts. Richard Moon finds it “difficult to see how a court could take such a broad approach to freedom of conscience, and extend protection to any belief/practice that an individual might consider important or valuable, but not obligatory.”156 With respect to freedom of conscience in the ICCPR, the UN Human Rights Committee held that “the right to freedom of conscience does not as such imply the right to refuse all obligations imposed by law, nor does it provide immunity from criminal liability in respect of every such refusal.”157
155 Chapman, supra note 83 at 1471-1472. 156 Richard Moon, “Religious Commitment and Identity” (2005) 29:2 SCLR 201 at 215. 157 UN Human Rights Committee, Westerman v Netherlands, Comm No 682/1996, (2000) IHRR 362 (3 November 1999) at para 9.3. 94
I agree that freedom of conscience understood as moral freedom protects moral convictions that bind the person to act in a certain way. To extend the scope of freedom of conscience to any commitment that is merely personally significant or valuable would not only betray what conscience is ordinarily understood to concern (moral judgments); it would also greatly expand the scenarios in which persons can exempt themselves from laws and thereby render it more difficult for the state to justify limits on freedom of conscience. Jocelyn Maclure and Charles
Taylor draw the line between whether a commitment engages freedom of conscience at “core commitments and personal preferences that are not intimately connected” to a person’s “self- understanding as a moral agent.”158 In their words, “the beliefs that engage my conscience” must be “distinguished from my desires, tastes, and other personal preferences” – that is, “from all things liable to contribute to my well-being but which I could forgo without feeling as if I were betraying myself or straying from the path I have chosen.”159
If freedom of conscience protects moral judgments, what is a moral judgment? This engages a discussion of what counts as a moral issue. This is difficult terrain to travel because,
“despite countless attempts, no universally accepted definition of the moral domain has been offered so far”.160 Even so, there is some measure of consensus. Moral issues often concern
“judgments of justice, rights, and welfare pertaining to how people ought to treat each other”.161
Moral judgments “often concern courses of action that entail some harm, especially loss of life or other physical harm, loss of rightful property, loss of privacy, or other threats to autonomy.”162
158 Maclure & Taylor, supra note 128 at 91. 159 Ibid at 77. 160 Daniel M Bartels et al, “Moral Judgment and Decision Making” in Gideon Keren and George Wu, eds, The Wiley Blackwell Handbook of Judgment and Decision Making (Chichester: Wiley, 2016) 478 at 479. 161 Elliot Turiel, The Development of Social Knowledge: Morality and Convention (Cambridge: Cambridge University Press, 1983) at 3. 162 Bartels et al, supra note 160 at 479. 95
They “also tend to be triggered by actions that affect not only the actor but others as well.”163
Distinguishing between “doing something that is unwise from something that is morally abhorrent” is intuitive for most people.164 Moral judgments flow from moral reasoning, which is
“individual or collective practical reasoning about what, morally, one ought to do.”165 Richmond
Campbell defines moral judgments as “complex, multifunctional states that normally comprise both states of belief that represent possible moral truths and states of emotion and motivation.”166
He defines a moral judgment succinctly as a judgment “that an action is morally wrong”.167
As with conscience, I adopt a broad, nontechnical understanding of morality and moral judgment. I expect that, as with “religion”, Canadian courts will do the same. If Canadian courts refuse to be an “arbiter of religious dogma”,168 it seems unlikely that they will be an arbiter of moral truth. The essential question, as with religious freedom, is whether the claimant sincerely believes that a certain course of action would cause her to commit, collaborate, or cooperate with something that she considers immoral. In other words, does the claimant sincerely believe that she ought to do (or not do) something because to act otherwise would be immoral? The doctor that opposes abortion for conscientious reasons, for example, may do so because she concludes that killing an innocent human being, which is how she views the foetus, is immoral.
Collective Conscience?
There remains little doubt that freedom of religion in s. 2(a) protects both individual and collective religious freedom. That said, the collective dimension of religious freedom is far less
163 Ibid. 164 Ibid. 165 Stanford Encyclopedia of Philosophy, “Moral Reasoning” (15 September 2003), online:
J. described religious freedom as protecting “both the individual and collective aspects of religious belief”.169 In a separate judgment concurring partially with the majority, McLachlin C.J. and
Moldaver J. are more explicit: freedom of religion in s. 2(a) “has both an individual and a collective dimension.”170 In the litigation over a proposed law school at a private Christian university in
British Columbia, the Supreme Court of Canada did not question the notion that the university enjoys religious freedom under s. 2(a).171
Does freedom of conscience have a collective dimension? The individual dimension of conscience is obvious but the collective dimension less so. While faith-based universities and high schools enjoy religious freedom, do they also enjoy freedom of conscience? The collective dimension of religious freedom is partly based on certain common features of religions: “Religion is about religious beliefs, but also about religious relationships” as well as “the maintenance of communities of faith” and passing on that faith “to future generations.”172 Conscience, as the historical debates reveal, is intuitively individualistic. It is uncommon to ascribe a conscience to an institution or group. Yet if “mankind” has a conscience as the preamble to the UDHR proclaims, perhaps an institution or collective can profess conscientious beliefs. A Catholic hospital that refuses to provide abortions arguably does so based on the conscientious belief that abortions are immoral, just as the individual Catholic doctor that refuses to provide abortions on the same basis.
A collective aspect of freedom of conscience seems more plausible if the healthcare institution is non-religious (eg, a palliative care facility that refuses to offer assisted death). While the question
169 Loyola High School v Quebec (Attorney General), 2015 SCC 12 at para 59, [2015] 1 SCR 613. 170 Ibid at para 92. 171 Law Society of British Columbia v Trinity Western University, 2018 SCC 32; Trinity Western University v Law Society of Upper Canada, 2018 SCC 33. 172 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 93, [2009] 2 SCR 567. 97 of whether freedom of conscience has a collective dimension cannot be comprehensively addressed in this thesis, the idea does not seem farfetched if moral judgments are the substance of freedom of conscience. A group of like-minded individuals standing behind an institution can, like a single person of the same mind, make such judgments and live in accordance with them.
III. What about Freedom of Religion?
If freedom of conscience in the Charter protects moral judgments, what remains for freedom of religion? One could argue that interpreting freedom of conscience this way largely – if not entirely – empties religious freedom of meaningful content. Is it not the case, as Bastarache J. opined in Amselem, that “religion is, first and foremost, a question of conscience”?173
In my view, freedom of religion protects matters of faith. Guidance on what counts as a matter of faith is found in how the majority in Amselem defined “religion” in s. 2(a): “In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment.”174
Manifesting these faith-based “convictions” or beliefs” allows persons to “foster a connection with the divine or with the subject or object of that spiritual faith.”175 As matters of faith can be internalized or externalized, religious freedom protects faith-based beliefs and action based on these beliefs, such as worship, ritual, charitable works, and religious instruction.
Aside from Amselem, understanding “religion” as concerned with matters of faith enjoys a long history in Canadian jurisprudence. In 1969, Martland J. of the Supreme Court held that religion, in the “sense that it is generally understood in Canada”, involves “matters of faith and worship, and freedom of religion involves freedom in connection with the profession and
173 Amselem, supra note 87 at para 140. 174 Ibid at para 39. 175 Ibid. 98 dissemination of religious faith and the exercise of religious worship.”176 In 1985, the Court held that the “general concept of freedom of religion” that has been “well-established in our society and was a recognized and protected right long before the human rights codes of recent appearance were enacted” provides that “a person should be free to adopt any religion he or she may choose and to observe the tenets of that faith.”177
If freedom of religion concerns matters of faith, what does faith mean? The key factor for determining whether a faith-based belief or practice is captured by freedom of religion is the
“subject or object” of faith.178 A person can say “I have faith that the bus will arrive on time” based on the usual punctuality of the bus or because of the reputation of the bus company. The object of this person’s faith is mundane – it does not concern “one’s perception of oneself, humankind, nature” or “a higher or different order of being”179 or “a divine, superhuman or controlling power.”180 By contrast, the Christian who believes that Jesus Christ is the Son of God holds this belief as a matter of faith, not on account of a moral judgment. Similarly, the Catholic who wears a crucifix does not do so because of an underlying moral judgment but to manifest the faith-based belief that Jesus Christ redeemed humanity through his death and resurrection.
Faith in the context of religious freedom refers to a particular type of rationality. Rafael
Domingo argues that the “ultimate justification for legally protecting religion lies in the need to protect” as a “dimension of human dignity as well as a secular value” what he calls
“suprarationality”.181 Domingo argues that “secular legal systems are able to differentiate moral reasoning – secular rationality – from the reasoning characteristic of theological traditions: what
176 Walter et al v Attorney General of Alberta et al, [1969] SCR 383 at 393, 3 DLR (3d) 1. 177 Ont Human Rights Comm v Simpson-Sears, [1985] 2 SCR 536 at 553-554, 23 DLR (4th) 321. 178 Amselem, supra note 87 at para 39. 179 Edwards Books, supra note 126 at 759. 180 Amselem, supra note 87 at para 39. 181 Rafael Domingo, “Restoring Freedom of Conscience” (2015) 30:2 JL & Religion 176 at 185. 99 we might call religious supra-rationality (to indicate a type of reasoning that might avowedly go beyond natural reason, without necessarily going against it – without irrationality).”182
The “secular value” of suprarationality is what I and others might call “faith”. Timothy
Macklem argues that faith is the secular value that justifies legal protection of freedom of religion: the “moral foundation of freedom of religion is to be found in the value that the practice of faith, understood as a mode of belief distinct from reason, contributes to human well-being.”183
Macklem argues that the justification for religious freedom as a legal right “is not to be found in the articles of religious belief” but in the “capacity of religious faith to sustain its adherents in their fundamental commitment to life and to the moral values that make life worth living, a commitment that cannot always be made on the basis of reason alone.”184 Among the other fundamental freedoms often guaranteed in bills of rights, “all that freedom of religion can claim to cover distinctively today is religiously inspired conduct, or more precisely, religiously inspired conduct that lacks a symbolic character and so would not be protected by freedom of expression.”185
Macklem understands “religion” as referring to “collective participation in institutions and practices that manifest a freely given personal commitment to a particular set of beliefs, beliefs that are not based on reason alone but are held, at least in part, on the basis of faith.”186 He believes that only faith “can generate a contribution to human well-being that is both capable of meeting the moral requirements of a fundamental political guarantee and sufficiently distinctive to warrant protection as religion, over and above the protection that is offered to expression, association, assembly, and other secular activities.”187
182 Ibid at 180. 183 Timothy Macklem, “Faith as a Secular Value” (2000) 45 McGill LJ 1 at 4. 184 Ibid. 185 Ibid at 9. 186 Ibid at 27. This definition of “religion” differs from the one adopted in by the majority in Amselem, most prominently with respect to the “collective” requirement (no such requirement is stipulated in Amselem) 187 Ibid. 100
Macklem’s contribution calls to mind the statements of LeBel J. in Hutterian Brethren on why the drafters of the Charter felt it necessary to guarantee freedom of religion even though the
Charter also protects freedom of opinion, conscience, expression, and association.188 Macklem’s answer is that freedom of religion protects the secular value of faith. For LeBel J., the decision to protect freedom of religion “reflects the complex and highly textured nature” of this freedom.189
He views freedom of religion as incorporating the “right to establish and maintain a community of faith”190 and, in the specific case of the Hutterian Brethren of the Wilson Colony in Alberta, a
“community that shares a common faith and a way of life that is viewed by its members as a way of living that faith and of passing it on to future generations.”191
If freedom of conscience protects moral freedom, freedom of religion would – in addition to protecting faith-based beliefs and practices – also continue to protect the freedom to practice one’s religion of choice, including no religion at all. In Big M Drug Mart, the Supreme Court held that s. 2(a) equally protects “expressions and manifestations of religious non-belief and refusals to participate in religious practice.”192 As such, a “government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose.”193
Religious freedom’s protection of religious choice (including the choice of no religion) has most recently been captured in Saguenay. In that decision, the Supreme Court of Canada held that s. 2(a) imposes a duty of neutrality on the state with respect to religion, which dictates that the state can “neither favour nor hinder any particular belief, and the same holds true for non-belief.”194
In Saguenay, the Court repeatedly refers to the two interests protected by s. 2(a) rather than simply
188 Hutterian Brethren, supra note 172 at para 180. 189 Ibid at para 181. 190 Ibid. 191 Ibid at para 182. 192 Big M Drug Mart, supra note 66 at 346-347. 193 Ibid at 426. 194 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 72, [2015] 2 SCR 3. 101 referring to “religion”. It is somewhat unclear whether the state’s duty of neutrality in matters of religion is based on one of the two interests (conscience or religion) or somehow based on both of them. As scholarship and jurisprudence on the duty of neutrality grows, it will be interesting to observe if and how neutrality in respect of conscience is treated.
In my view, the state’s duty of neutrality vis-à-vis religion and the protection of a citizen’s freedom of choice with respect to religion are mainly protected by religious freedom. Where the state favours or hinders a particular religion, it adversely impacts citizens who do not practice the favoured religion and citizens who practice the hindered religion. As for irreligious persons, favouring a particular religion has a detrimental impact on the ability of these persons to have no religion. What work might “conscience” do in this regard? If conscience protects moral judgments, one can imagine that a person of one faith tradition may, as a matter of conscience, find the religion favoured by the state to be immoral in some respect. If that person considers certain (or all) tenets of that religion to be immoral, forcing her to follow them would seemingly violate her religious as well as her conscientious freedom.
A similar situation might arise for a non-religious person who finds certain religions immoral and is forced, by the state’s decision to prefer such a religion, to adhere to certain beliefs or practices of that religion. While it is not apparent in the decision of the Supreme Court of Canada in Saguenay, the complainant in that case – an atheist – viewed the state’s preference of one religion over others (in the form of allowing a Christian prayer at the beginning of municipal council meetings) to be an infringement of his freedom of conscience.195 Even though freedom of conscience may have a role to play in the context of the state’s duty of neutrality as has just been
195 In the factum of the Appellants before the Supreme Court of Canada, there are several assertions that the actions of the municipality infringed the freedom of conscience of the initial complainant (Alain Simoneau). There are, by contrast, no references to the complainant’s freedom of religion: see Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3 (Factum of the Appellants). 102 discussed, the important point is that the substance of freedom of conscience – moral judgments as they are applied to action – remains the same even in this context.
Some may argue that freedom of conscience only protects moral judgments that are products of natural reason, while freedom of religion protects judgments – moral or otherwise – that are products of authoritative religious teaching.196 Daniel Weinstock suggests that this approach makes sense of the protection of conscience and religion in bills of rights.197 I disagree, for two reasons. First, this approach maintains the differential legal treatment of claims in which the religious person and the non-religious person hold the same moral judgment. Second, it is premised on the idea that the moral judgments of a religious person are categorically unattainable by reason, while the moral judgments of the non-religious person are. Taking abortion as an example, I suspect that the grounds on which most religious traditions deem abortion immoral mirror the grounds on which non-religious persons reach the same conclusion: the humanity of the foetus. These religious traditions have, like the non-religious person, reached their moral judgment with the assistance of natural reason. Divine revelation or sacred writings may reinforce this moral judgment, but natural reason is sufficient. Third, this approach assumes that matters of (religious) conscience are held on faith in the moral correctness of what the religious authority at issue teaches. It impliedly rejects the notion that the religious person considers the moral teaching of the religious authority and accepts it as rationally defensible. In my view, this is an unsafe assumption to make. I suspect that most religious persons would not describe their assent to the moral – as
196 It strikes me as problematic to label the (objective) commands of religious authority as central to religious freedom and the (subjective) commands of individual conscience as central to freedom of conscience. Are the commands of conscience not equally authoritative as the commands of a religious authority? 197 Daniel Weinstock, “Beyond Objective and Subjective: Assessing the Legitimacy of Religious Claims to Accommodation” (2011) 6:2 Ethics Forum 155-175. See also Perry Dane, “Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities” (1980) 90:2 Yale LJ 350-376; and Victor M Muñiz-Fraticelli & Lawrence David, “Religious Institutionalism in a Canadian Context” (2015) 52:3 Osgoode Hall LJ 1049-1114.
103 opposed to the theological – teaching of a religious authority as a matter of faith, but as a matter of conscience. This, in my view, is no accident but rather an indication of the basis on which the teaching is held (conscience, not faith).
Where a person alleges that the state has limited her freedom to manifest a moral judgment but the evidence reveals that this person is primarily or only concerned with manifesting this moral judgment because of the authority of a religious institution, freedom of religion would seem to be the appropriate Charter right to invoke. There is a difference, I submit, between the Catholic doctor who refuses to perform abortions on account of wholeheartedly accepting the teaching of the
Catholic Church on the humanity of the foetus and the Catholic doctor who refuses to perform abortions for no reason beyond his submission to the teaching authority of the Catholic Church. I submit that the first doctor would have recourse to freedom of conscience, while the second would have recourse to religious freedom.
Conclusion
While the nature of conscience has been the subject of much philosophical debate in the
Western intellectual tradition, conscience is intuitively the dimension of individuals that discerns moral right from wrong. A person may or may not follow her moral judgments, but inclusion of freedom of conscience in most bills of rights indicates that allowing individuals to honour these judgments is considered valuable and worth protecting. Moral judgments can be informed by religious or non-religious sources, and individuals can arrive at the same moral judgment by different paths. Due to these features of conscience, I submit that freedom of conscience should protect all moral judgments. Matters of faith, meanwhile, are protected by freedom of religion.
Having disentangled “conscience” from “religion” in s. 2(a), one might ask: why bother doing so as long as the content of s. 2(a) is being captured by Canadian courts and legislatures? 104
Daniel Weinstock offers an answer that I endorse: “To the extent that many Charters of Rights distinguish” the two interests of conscience and religion in their text, a “principle of charity behooves us” to “find distinct grounds for affirming these distinct rights.”198 Aside from doctrinal clarity, Weinstock also argues that there is a subtle but important difference with respect to the values that the two interests in s. 2(a) safeguard. While conscience “protects the process and the results of moral reflection”, religion “protects the agent’s ability to continue to participate in rites and practices, and to follow communal rules, the principal function of which have to do with individual identity.”199 This contrast leads us to the next chapter, which explores the rationale for protecting freedom of conscience in a constitutional bill of rights.
198 Weinstock, supra note 78 at 10-11. 199 Ibid at 11. 105
Chapter 3 – The Normative Reasons for Freedom of Conscience Introduction...... 105
I. Conscience and Integrity ...... 107 Conceptions of Integrity ...... 109 Freedom of Conscience and Integrity ...... 111 The Value of Personal Integrity ...... 114 II. Conscience and Identity ...... 118 Identity and Pursuit of the Good ...... 122 Identity and Unthinkable Acts ...... 124 Identity and Moral Agency ...... 125 III. Injury to Conscience ...... 128 Moral Distress and Injury ...... 128 The Guilty Conscience ...... 130 Conscience and Dignity ...... 133 IV. Figures of Conscience ...... 136 Conclusion ...... 143
Introduction
Why protect freedom of conscience? Why do we care about the freedom to live in alignment with our moral commitments to such an extent that we enshrine it in a bill of rights?
While the immediate target audience of this thesis – the “we” that I invoke – is Canadian jurists,
I suspect that the propositions I advance will resonate within any liberal democracy that protects freedom of conscience in its bill of rights.
I remind the reader that one of the objectives of this thesis is to articulate how freedom of conscience should be normatively understood. In other words, what is the most persuasive theoretical conception of freedom of conscience? I have already argued that the content of freedom of conscience is best interpreted as protecting our freedom to manifest our moral 106 judgments, whether these judgments are inspired by religious or non-religious sources. This chapter aims to identify and explain the most compelling philosophical reasons for protecting this freedom. If faith is the value that justifies legal protection of religious freedom, what is the corresponding value for freedom of conscience? The answer, in my view, can be reduced to two interrelated concepts: integrity and identity.
Integrity refers to the state of being whole or undivided, usually in relation to morality. It refers to a unity of life – not being one person in some contexts and a different person in others.
Opposites of integrity include dishonesty, deceit, hypocrisy, and corruption. Most persons hold integrity in high esteem. It is peculiar to call a lack of integrity a positive personality trait.
Matters of conscience are also often fundamental to identity. Devotion to a hobby or sports team may be important to me, but it is odd to say that an inability to foster that devotion would damage my identity. It would also be odd to say that it would violate my conscience.
Comparing the person who abandons the sports team and the person who abandons his moral convictions, the latter is more likely to be described as no longer the same person.
I submit there is an intimate interrelationship – a set of intertwining links – between conscience, integrity, and identity. Conscience points to moral judgments, and living in alignment with these judgments (or not) affects our integrity and identity. Living conscientiously sustains and develops integrity and identity while living unconscientiously leads to the opposite result. A person who violates her moral judgments – and therefore injures her integrity or identity – suffers harm. The experience of self-betrayal in matters of conscience differs qualitatively from an inability to live in accordance with other matters such as personal preferences and tastes. There is a material difference between the disappointments that arise when individuals cannot pursue their preferences and tastes, on the one hand, and the harm 107 inflicted by a violation of their moral commitments, on the other hand. The latter can cause concrete psychological harm, erode one’s sense of self-worth, and injure human dignity.
This chapter has four parts. Parts I and II examine the links between conscience, integrity, and identity. I identify the prevailing understandings of integrity in Anglo-American analytic moral philosophy, uncover the particular understanding of integrity that informs freedom of conscience, and explain why that understanding is worth protecting in bills of rights.
I substantiate the claim that matters of conscience are also foundational to identity by exploring three points of intersection for identity and conscience: a person’s pursuit of the good, acts that a person deems unthinkable for herself, and a person’s capacity to exercise her moral agency. Part
III considers the harm that flows from violations of conscience, relying on sources ranging from psychiatric and psychological scholarship to Socrates and Shakespeare. Finally, in Part IV, I offer examples of persons who followed conscience to preserve their integrity and identity.
I. Conscience and Integrity
This Part illuminates how conscience relates to integrity. I submit that the normative interest in safeguarding integrity is a principal reason why freedom of conscience (understood as the freedom to live out our moral judgments) is included in a bill of rights like the Charter. After making some general observations about the relationship between conscience and integrity, I proceed to identify what integrity means, the kind of integrity that freedom of conscience protects, and the normative rationale for safeguarding this kind of integrity in a bill of rights.
Conscience and integrity are often spoken in the same breath. In a collection of essays entitled Integrity and Conscience, one author writes: “Making moral decisions conscientiously 108 and sticking by them are widely thought to be the essential ingredients of integrity”.1 Stephen
Covey, in the sequel to his popular book The 7 Habits of Highly Effective People, says that when individuals “strive to live by their conscience, it produces integrity and peace of mind.”2 He quotes William John Henry Boetcker (1873-1962), a pastor and public speaker who said that, in order to preserve “self-respect”, it is “better to displease the people by doing what you know is right, than to temporarily please the people by doing what you know is wrong.”3 The more a person lives in alignment with her conscience, the more she is a person of integrity (and vice versa). Beryl Holtam describes moral integrity as an “indicator of a maturing or healthy conscience”4 and integrity and conscience as “partners in moral formation.” 5 It is difficult to imagine a person of integrity as corrupt, immoral, or two-faced. In other words, it is “difficult to think of someone believing that he is acting with integrity yet disobeying the dictates of his conscience.”6 The same goes for the reverse scenario – that is, someone “feeling compelled to ignore her sense of what integrity requires to remain faithful to her conscience.”7
Integrity can be understood as the fruit of forming and following conscience. Kimberley
Brownlee writes that if we “were to realize an ideal of conscience”, we would better assess the
“moral quality” of past acts and adjust for the future.8 We would “consider how best to expand our moral horizons”, “cultivate a future-oriented awareness of possibilities for moral
1 TE Hill Jr, “Four conceptions of conscience” in Ian Shapiro & Robert Adams, eds, Integrity and Conscience: Nomos XL (New York: NYU Press, 1998) 13 at 13. 2 Stephen Richards Covey, The 8th Habit: From Effectiveness to Greatness (Toronto: Toronto Free Press, 2004) at 81. 3 Ibid at 82. 4 Beryl W Holtam, Let’s Call it What It Is: A Matter of Conscience (Rotterdam: Sense Publishers, 2012) at 108. 5 Ibid at 83. 6 Ian Shapiro & Robert Adams, “Introduction” in Ian Shapiro & Robert Adams, eds, Integrity and Conscience: Nomos XL (New York: NYU Press, 1998) 1 at 1. 7 Ibid. 8 Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience (Oxford: Oxford University Press, 2012) at 79. 109 development”, “live much of our life in a range of wholesome states including kindness, compassion, generosity, forgiveness, and love”, and “attend to other persons’ opportunities to flourish.”9 She concludes: “In short, we would have integrity.”10
One of the claims in this chapter is that the preservation of personal integrity, from a theoretical standpoint, is central to the normative rationale for guaranteeing freedom of conscience in a bill of rights. To build this claim, I will investigate conceptions of integrity in order to locate the particular understanding of integrity that underpins freedom of conscience.
Conceptions of Integrity
The claim that freedom of conscience safeguards personal integrity calls for consideration of what integrity means for the purposes of this freedom. In this section I consider how integrity is understood in philosophy before turning, in the following section, to the issue of which definition of integrity animates freedom of conscience.
The meaning of integrity is a subject of longstanding philosophical debate. There are “a variety of understandings” of integrity, but “no philosophical consensus as to the best account.”11
Cheshire Calhoun identifies three major understandings of integrity: (i) integrated-self, (ii) identity, and (iii) clean-hands.12 Integrated-self “involves the integration of ‘parts’ of oneself – desires evaluations, commitments – into a whole.”13 Integrity as identity means “fidelity to those projects and principles which are constitutive of one’s core identity.”14 Clean-hands means
“maintaining the purity of one’s own agency, especially in dirty-hands situations.”15
9 Ibid. 10 Ibid. 11 Carolyn Laabs, “Perceptions of Moral Integrity: Contradictions in Need of Explanation” (2011) 18:3 Nursing Ethics 431 at 436. 12 Cheshire Calhoun, “Standing for Something” (1995) 92:5 J Philosophy 235 at 235. 13 Ibid. 14 Ibid. 15 Ibid. 110
Reference to a “person of integrity” evokes the image of a person who is not duplicitous and who lives uniformly with respect to her core commitments, which often implicate ethics or morality. Integrity, in this sense, refers to the “condition of having no part or element taken away or wanting; undivided or unbroken state; material wholeness, completeness, entirety.”16 This sense of integrity does not assess the morality of the person’s character and actions – the focus is on consistency and self-integration. In other words, someone I consider immoral could still be living integrity in this sense. As Patrick Lenta puts it, the “genocidal Nazi” may be a “person of principle in the sense that he is committed to acting in accordance with his perceived moral duties notwithstanding the consequences.”17 Barbara Killinger defines integrity as a “personal choice, an uncompromising and predictably consistent commitment to honour moral, ethical, spiritual and artistic values and principles.”18 The content of these values and principles, on this understanding of integrity, are subjective (ie, as each person perceives them).
It is also possible to imagine a “person of integrity” as someone who lives a moral life
(depending, of course, on how you envision such a life). This is the moral sense of integrity:
“Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity.”19 This understanding of integrity appears to have fallen out of use in favour of understanding integrity as self-integration. This shift may be explained, at least in part, by the rise of moral relativism. Citizens of liberal democracies are increasingly reluctant to assert moral absolutes so they go no further, in assessing a person’s
16 Oxford English Dictionary Online, sub verbo “integrity”, online:
Still, it remains common to view a “person of integrity” as someone who lives in accordance with her core principles. It would be uncommon to call a person who publicly supported one sports team but secretly supports another team someone who lacks integrity.20
That person might be called person inconsistent, contradictory, and even hypocritical – but not a person who lacks integrity in the moral or ethical sense. The judgment would be different if that person had consistently condemned others who steal while he was, at the same time, committing thefts. Given the moral or ethical considerations in relation to theft (considerations that do not arise in relation to sport), it is more likely that this person would be said to lack integrity.
Two meanings of integrity prevail today. First, integrity is “primarily a formal relation one has to oneself, or between parts or aspects of one’s self”.21 Second, integrity is “connected in an important way to acting morally, in other words there are some substantive or normative constraints on what it is to act with integrity.”22 With these prevailing meanings of integrity in hand, I turn now to the issue of which meaning animates freedom of conscience.
Freedom of Conscience and Integrity
Freedom of conscience, in my view, safeguards moral integrity without determining whether a person’s convictions of conscience at issue are, according to a prescribed set of criteria, moral or immoral. This conclusion flows from my argument that freedom of conscience
20 I acknowledge that the validity of this statement may depend on the sports culture of a given locality. In certain places, publicly supporting one team but privately supporting another could be viewed as a deep – and even fundamental – lack of integrity. 21 Stanford Encyclopedia of Philosophy, “Integrity” (9 April 2001), online:
The proposal that freedom of conscience safeguards subjective moral integrity does not mean that the presence of freedom of conscience in a bill of rights speaks to the nature or existence of moral truth. Freedom of conscience merely assesses the output of moral reasoning
(ie, moral judgments). The idea that freedom of conscience concerns itself with nothing more than subjective moral judgments is reinforced by the usual understanding of conscience as a concept that “only concerns the subjective dimension of morality.”25 Regardless of whether moral truth is absolute, objective, or relative, “conscience only refers to what individuals believe, independently of any external, objective proof or justification.”26 Given that “we have at the center of our notion of conscience the idea that the conscience applies solely to the acts of the owner”, a person’s conscience “cannot be thought of as a judge of objective right or wrong.”27
23 A similar analysis is conducted in cases of religious freedom cases. The court must determine whether the belief or practise falls within the category of “religion”, but the court does not determine whether the belief or practise is correct in the sense of conforming to the tenets of a particular faith tradition. 24 Lynn McFall, “Integrity” (1987) 98:1 Ethics 5 at 14. 25 Stanford Encyclopedia of Philosophy, “Conscience” (14 March 2016), online:
While I agree that freedom of conscience focuses on a person’s subjective moral judgments, I reject the view that these judgments are never the product of objective reasoning.
Individuals can arrive at moral judgments with the help of objective sources such as science, evidence, and logic. I do agree, however, that the court deciding a claim based on freedom of conscience goes no further than determining whether the person’s belief engages morality and is sincerely held. The court is not concerned with “how good or bad the moral reasons I can provide to defend my claims are or appear to be”.28 This inquiry will not require the court to take a position on the nature of moral truth. In the Canadian legal context, just as a court in a religious freedom case will not act as an “arbiter of religious dogma”,29 neither will a court in a freedom of conscience case act as an arbiter of moral truth. The legal analysis in these cases will likely resemble that in religious freedom cases: does the claimant hold a sincere moral commitment with which the state has interfered in a manner that is more than trivial?
I agree, however, that by appealing to conscience, a person is usually not trying to convince others of the correctness of her moral commitments. An invocation of freedom of conscience is not an exercise in moral proselytism. James Childress notes that, in most cases, a person who appeals to conscience “has given up the attempt to convince others of the objective rightness of his act and is content to assert its subjective rightness, perhaps to secure some positive treatment such as an exemption from ordinary duties.”30 In other words, this appeal is essentially a request for accommodation that is primarily (if not exclusively) inspired by a wish to preserve personal integrity (as well as identity, a topic to which I turn later).
28 Stanford Encyclopedia of Philosophy, “Conscience”, supra note 25. 29 Syndicat Northcrest v Amselem, 2004 SCC 47 at para 50, [2004] 2 SCR 551. 30 James F Childress, “Appeals to Conscience” (1979) 89:4 Ethics 315 at 329. 114
The Value of Personal Integrity
In the previous section I proposed that personal integrity (understood as subjective moral self-integration) is a principal reason for affording legal protection to the freedom to manifest our subjective moral judgments. That idea raises a question: why is personal integrity valuable? Why bother affording it legal protection through freedom of conscience in a bill of rights? Patrick
Lenta identifies and responds to two objections to identifying personal integrity as the value upon which to justify including freedom of conscience in a bill of rights. The first is wickedness.
Citing the genocidal but self-integrated Nazi, Lenta notes that “one might think that personal integrity is valueless since an individual’s possessing personal integrity is compatible with his being wicked.”31 The second objection Lenta identifies is human error: people “may be wrong, sometimes seriously, about which moral duties they have.”32
On wickedness, some may argue that personal integrity is not valuable in the case of persons who lead an integrated life that is, in the view of others, wicked. Andrew Koppelman argues that if integrity (as self-integration) can be used to describe a conscientious but wicked person like the genocidal Nazi, then personal integrity is valueless.33 He focuses on Harry
Frankfurt’s statement that to be “wholehearted is quite compatible not only with being morally somewhat imperfect, but even with being dreadfully and irredeemably wicked”.34 Citing the
Nazi, Koppelman doubts the value of such wholeheartedness and affording it legal protection.35
Refusing to accommodate a person’s evil (but conscientious) convictions does not mean that the personal integrity derived from living these convictions is valueless. Patrick Lenta
31 Lenta, supra note 17 at 248. 32 Ibid. 33 Andrew Koppelman, “Conscience, Volitional Necessity and Religious Exemptions” (2009) 15 Legal Theory 215- 244. 34 Harry Frankfurt, The Reasons of Love (Princeton: Princeton University Press 2004) at 98. 35 Koppelman, supra note 33 at 239. 115 responds to Koppelman by saying that “we can agree” that “accommodations should be withheld from wicked individuals without having to agree that personal integrity is without value.”36 For
Lenta, it does not “necessarily follow from the fact that a conscientious individual might possess personal integrity yet be morally wicked” that personal integrity is therefore valueless.37 I agree with this reasoning, which holds that “integrity is valuable (since without it identity, autonomy, moral agency and self respect may be undermined), but that in any particular case the value of integrity may be outweighed by other considerations”.38 An example is where a person “acting consistently with his moral beliefs would violate others’ basic rights, or seriously harm them.”39
In Canadian constitutional law, circumstances that may justify limitations of fundamental rights or freedoms have been described as “limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”.40
In response to the objection that personal integrity is without value because it may protect wicked or immoral convictions, I submit that personal integrity is valuable in and of itself – that is, apart from an assessment of the moral rectitude of the pursuits that a person believes to constitute a life of integrity. As Harry Frankfurt puts it, “there is always something to be said in favour of caring about any object, quite independent of considerations pertaining to whether the object is or is not – all things considered – worthy of being cared about.”41 Yet this principle does not dictate that a personal commitment tied to integrity will always merit accommodation.
Other considerations may justify a refusal to accommodate. Bernard Williams shares this view, noting that integrity should not be understood as the “only value, or the only admirable quality;
36 Lenta, supra note 17 at 254. 37 Ibid. 38 Ibid. 39 Ibid. 40 R v Big M Drug Mart, [1985] 1 SCR 295 at 337, 18 DLR (4th) 321 [Big M Drug Mart]. 41 Harry Frankfurt, “Reply to Susan Wolf”, in Sarah Buss & Lee Overton, eds, Contours of Agency: Essays on Themes from Harry Frankfurt (Cambridge: MIT Press, 2002) 245 at 246. 116 or that things would always go better if people had integrity than if they did not.”42 The committed Nazi who refused bribes to save Jews possesses integrity but the common good would be advanced if he did not.43 In other words, a wish to live an integrated life does not automatically or always merit legal protection. While the genocidal Nazi might be hindered in pursuing personal integrity by laws that prohibit genocide, this pursuit is justifiably hindered for the sake of interests such as the preservation of human life and the affirmation of human dignity.
The notion that personal integrity has intrinsic value also responds to the second objection that Lenta identifies to staking personal integrity as the justification for including freedom of conscience in a bill of rights: people may be mistaken about their moral commitments. Personal integrity is always valuable, even where the person invoking freedom of conscience does so in relation to a mistaken or unreasonable moral commitment. The value of personal integrity, understood as the pursuit and maintenance of self-integration, relates to the
“project of becoming a fully autonomous person whose actions are determined by her self rather than by desires and values that are not truly her own.”44 The value of having and acting on my views does not derive from the fact that they are mine, but rather “because having and acting on views of one’s own is integral to being an autonomous, free, and responsible being, which itself is valuable.”45The value alluded to here relates, in my view, to dignity and human flourishing.
Again, this conclusion does not translate into automatic accommodation of an unreasonable or mistaken personal commitment that engages integrity. The reasons for refusing to accommodate
42 Bernard Williams, “Replies”, in JEJ Altham and Ross Harrison, eds, World, Mind and Ethics: Essays on the Ethical Philosophy of Bernard Williams (Cambridge: Cambridge University Press, 1995) 185 at 213. 43 Ibid. 44 Calhoun, supra note 12 at 255. 45 Ibid. 117 a wicked commitment that a person labels as a matter of integrity equally apply to an unreasonable or mistaken commitment of that category.
The relationship between freedom of conscience and personal integrity – as well as the value of both concepts – can be conceptually explained by the idea that a person should be free to live her life as a coherent narrative. Generally speaking, this occurs if a person behaves consistently, in accordance with what she believes, no matter the context. There is, in short, a unity of life. A person is more likely to be described as living incoherently if she is inconsistent with respect to her moral convictions rather than her tastes and preferences. If a person takes sugar in her coffee today but does not take sugar tomorrow, it is unlikely that others will accuse her of living incoherently. Robert Vischer notes that the “importance of personal integrity is now commonly explained in terms of the ability to live one’s life as a narrative – as a seamless whole, shaped and directed by one’s beliefs.”46 For Vischer, the “heart” of why a society includes freedom of conscience in a bill of rights is “the value we place on one’s ability to live life as a narrative.”47 When the state forces a person “to act contrary to what they perceive as a moral obligation”, it “jeopardizes the coherence of a life narrative built on certain moral claims, along with a deeper accountability of the person to the source of those claims.”48
The narrative-based connection between freedom of conscience and integrity lends support to understanding freedom of conscience as conduct-focused. Vischer submits that human beings conceptually distinguish conscience from belief; a distinction that, in his view, is “plain from the lives of those who occupy conscience’s pantheon of heroes”, such as Thomas More.49 If
46 Robert K Vischer, Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge: Cambridge University Press, 2010) at 64. 47 Ibid at 71. 48 Ibid at 73. 49 Ibid at 101. 118 the focus of freedom of conscience is “only on belief, conscience has very little to do with personal integrity, which requires a unity of action and belief.”50 Thomas More suffered execution for refusing to swear an oath recognizing King Henry VIII as head of the Church of
England. As Vischer notes, if “conscience were simply a belief, he would have been free to sign his name without compromising his integrity.”51 Vischer argues that, to permit citizens to live the
“moral coherence on which a personal narrative is built”, there must be robust protection for
“conscience-as-action”.52 Freedom of conscience, on this account, is not merely concerned with protecting us from being compelled to betray our life narratives. It is also interested in providing space for these life narratives to be discerned, shaped, and manifested.
If freedom of conscience provides space to live a life of integrity – a life that is a coherent narrative with moral commitments as a cornerstone – then the idea that freedom of conscience safeguards the essence of an individual’s identity is not a difficult leap to make. If my moral commitments are central to who I am and what I stand for, such that I would compromise my sense of self if I betray them, it stands to reason that freedom of conscience preserves my identity. It is to this topic – the relationship between conscience and identity – that I now turn.
II. Conscience and Identity
Along with integrity, identity is a value safeguarded by freedom of conscience. Identity forms part of the normative rationale for including freedom of conscience in a bill of rights.
After exploring how matters of conscience are usually central to a person’s identity, this hallmark of the conscience-identity relationship is further revealed by reference to how
50 Ibid. 51 Ibid. 52 Ibid. 119 conscience and identity are more or less equally concerned with a person’s freedom to pursue the good, avoid the commission of (morally) unthinkable acts, and exercise moral agency.
Living conscientiously – acting in accordance with your perceived moral duties – is a basic expression of personal identity. As mentioned earlier, identity is a leading conception of integrity – that is, “fidelity to those projects and principles which are constitutive of one’s core identity.”53 Personal identity is “constituted by identifications with and endorsements of certain beliefs and desires and the rejection of others.”54 The shape of a person’s identity depends on a range of interests, tastes, preferences, beliefs, and commitments. It appears that certain of these components are more fundamental to my identity than are others. A person’s preference for taking sugar with her coffee is likely less fundamental to her identity than is her career. And her career is likely less fundamental to her identity than are her convictions as to what is right and wrong or good and evil (in the moral sense), even though many of those commitments may never be put to the test during her life. Along the spectrum of identity-shaping components, I submit that a person’s moral commitments sit on the more fundamental end.
A person who violates her moral commitments betrays a significant aspect of her identity.
As Jocelyn Maclure and Charles Taylor put it, “core” or “meaning-giving” convictions and commitments differ from “other personal beliefs and preferences because of the role they play in individuals’ moral identity.”55 These authors build on this point and illuminate the integrity- identity relationship by stating that the “more a belief is linked to an individual’s sense of moral integrity, the more it is a condition for his self-respect, and the stronger must be the legal
53 Calhoun, supra note 12 at 235. 54 Lenta, supra note 17 at 251. 55 Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience, trans Jane M Todd (Cambridge: Harvard University Press, 2011) at 76. 120 protection it enjoys.”56 These core commitments “allow people to structure their moral identity and to exercise their faculty of judgment in a world where potential values and life plans are multiple and often compete with one another.”57 When a person’s actions do not align with the moral dimension of his identity, he is “in peril of finding his sense of moral integrity violated.”58
The stakes for identity are higher when a person’s freedom to follow her moral judgments
– as opposed to less fundamental interests – is curtailed. The person who is prohibited from taking sugar with his coffee may be disgruntled, but he will not feel as though he has betrayed his identity. The person who is prohibited from following his moral judgments or who is compelled to violate these judgments will be more than disgruntled: he is forced to betray himself – his identity – or retreat from the crisis of conscience. The injury to identity that is occasioned by a failure to honour one’s moral judgments influences whether “one can sleep at night, or live with oneself”.59 Violations of conscience can lead to “moral distress” – a
“powerfully negative experience” that, where the violation occurs at work, can lead to withdrawal from a profession.60 Indeed, a person mired in a professional crisis of conscience has two unenviable choices: violate her conscience and injure her integrity and identity (and potentially suffer harm) or retreat from the professional situation that threatens her conscience.
While such a retreat may be a viable option in the abstract, the value of being able to pursue one’s desired profession should not be overlooked. A person’s career plays a major role in shaping her identity. Chief Justice Dickson of the Supreme Court of Canada once described work as “one of the most fundamental aspects in a person’s life, providing the individual with a
56 Ibid. 57 Ibid. 58 Ibid. 59 Laabs, supra note 11 at 431. 60 Ibid at 432. 121 means of financial support and, as importantly, a contributory role in society.”61 He also said that a person’s employment is “an essential component of his or her sense of identity, self-worth and emotional well-being.”62 I will explore this issue in the case studies on conscientious objection in relation to healthcare and same-sex marriage.
The relationship between conscience and “meaning-giving” or “identity-conferring” commitments has at times been drawn so tightly that conscience itself has been described as an identity-conferring concept. When I invoke conscience as the justification for some sort of accommodation, “I indicate that I am trying to preserve a sense of myself, my wholeness and integrity, my good conscience, and that I cannot preserve these qualities if I submit to certain requirements of the state or society.”63 When I say that I cannot do this or that in good conscience, I am saying that doing this or that is incompatible with who I am or what I stand for.
To posit that conscience is intimately linked to identity can be understood in (at least) two ways. The first way is, as Mark Wicclair puts it, to view conscience as encompassing the moral commitments that are “integral to an agent’s understanding of who she is (i.e., her self- conception or identity)”.64 The second way is to think of living a conscientious life – that is, to live a life in accordance with those moral commitments. Viewing conscience as an identity- conferring concept refers to a “commitment to uphold one’s deepest and self-identifying moral beliefs”65 or a “mode of consciousness in which prospective actions are viewed in relation to one’s self and character.”66 On either of these two accounts, however, conscience is “an essential
61 Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313 at 368, 38 DLR (4th) 161. 62 Ibid. 63 James F Childress, supra note 30 at 327. 64 Mark R Wicclair, Conscientious Objection in Health Care: An Ethical Analysis (Cambridge: Cambridge University Press, 2011) at 4. 65 Daniel P Sulmasy, “What is conscience and why is respect for it so important?” (2008) Theoretical Medicine & Bioethics 29:3 135 at 138. 66 Jeffrey Blustein, “Doing What the Patient Orders: Maintaining Integrity in The Doctor-Patient Relationship” (1993) 7:4 Bioethics 289 at 294. 122 part of our understanding of what kind of person we are, and this is taken to be a reason for warranting protection of conscience and conscientious objection” in various contexts.67
Recent psychological research supports the view that conscience confers identity. An example is research on psychopaths: persons “who display antisocial behaviour and systematically act without regard to what they consider right and wrong”.68 A person diagnosed as a psychopath arguably lacks a conscience in the sense of an incapacity to access moral knowledge and associate such knowledge with conduct, or to experience emotions like guilt or shame.69 According to some psychologists, psychopaths are less likely to construct their identity upon moral commitments in comparison to non-psychopaths.70 Another psychological study suggests that identity is more shaped by moral characteristics than ability to recall past events.71
This study suggests, in other words, that we are more likely to say that a person is no longer the same person when she loses her moral compass rather than when she loses her memory.
Identity and Pursuit of the Good
The essential point in the previous section is that matters of conscience are core elements of a person’s identity. This section and the two that follow reinforce this claim by investigating intersection points between identity and conscience – a concern, interest, value, or good that is significant or valuable for conscience and identity alike.
The first of these intersection points is a person’s conception of the good and her pursuit of it. John Rawls considers a person’s self-respect – the “secure conviction that his conception of
67 Stanford Encyclopedia of Philosophy, “Conscience”, supra note 25. 68 Ibid. 69 Robert D Hare, Without Conscience: The Disturbing World of the Psychopaths Among Us (New York: Guildford Press, 1999). 70 Andrea Glenn et al, “Moral Identity in Psychopathy” (2010) 5:7 Judgment & Decision Making 497–505. 71 Nina Strohminger & Shaun Nichols, “Neurodegeneration and Identity” (2015) 26:9 Psychological Science 1469- 1479. 123 his good, his plan of life” is both worthwhile and achievable – to be a fundamental good.72
Michael McGann argues that individuals’ “self-respect can be corroded if they see themselves as acting in ways that violate the norms and patterns of behavior prized by their conception of the good.”73 The reason, he argues, is that self-respect depends on the extent to which I perceive myself as committed to a “conception of a worthwhile and appropriate life” and the extent to which I am actually “living that life.”74 This type of self-respect has been termed “evaluative self-respect”: the person evaluates whether her activity conforms to her conception of the good and whether she is committed to pursuing it.75 Where the evaluation reveals a failure on these scores, her “confidence in her own ability to act in ways that are valuable and worthwhile will be corroded.”76 What follows for her is an experience of self-betrayal and shame. She “believes she has fallen short of her ideals” and “thinks she could and should have done better” – she “regards herself as less than she ought to be and her worth as thereby threatened.”77
This experience of self-betrayal or shame reinforces the earlier point about the contrast in experience when a person cannot manifest her “meaning-giving” commitments as opposed to her tastes or preferences. While having to “give up on one’s tastes can cause people considerable regret, and people may regard the fact that they were unable to indulge their tastes as highly unfortunate”, this experience is “different from feeling shame or from suffering a wound to one’s self-respect.”78 McGann demonstrates this point with the example of an adult who enjoyed equestrian in her youth. If she can no longer pursue this hobby – perhaps for financial reasons –
72 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999) at 386. 73 Michael McGann, “Equal Treatment and Exemptions: Cultural Commitments and Expensive Tastes” (2012) 38:1 Soc Theory & Practice 1 at 14. 74 Ibid at 15. 75 Robin S Dillon, “How to Lose Your Self-Respect” (1992) 29 American Philosophical Q 125-39. 76 McGann supra note 73 at 15. 77 Dillon, supra note 75 at 128. 78 McGann, supra note 73 at 15. 124 she “may well suffer some loss of well-being” or “hold that her life would have gone better” had she been able to continue this activity.79 However, it is not apparent that “she might think any less of herself as a person”.80 Her compromise in relation to this cherished hobby in “is not the sort of compromise that amounts to a compromise of herself”, even though it may result in significant distress or discontent.81 In other words, she does not betray herself in this scenario.
The same cannot be said if she were forced to compromise her “religious beliefs, cultural commitments, and other deep-seated convictions of conscience” – these convictions are “more central to people’s sense of integrity and self-worth”, such that violating them “can be devastating to a person’s evaluative self-respect.”82
Identity and Unthinkable Acts
The second point of intersection between conscience and identity are acts that a person deems unthinkable for herself. Both the core of our identity and our convictions of conscience are discoverable by answering this question: which acts are unthinkable for me? Harry Frankfurt says that a person never wills “what is for him unthinkable” because “the set of actions that are unthinkable for a person specify the limits of what a person can will to do”.83 This set of actions, in other words, “defines his essence as a volitional creature” – as a creature that wills and chooses courses of action. 84 Patrick Lenta rightly notes that some individuals do not equate the dictates of conscience with unthinkable acts. For some people, “acting against the promptings of their conscience is neither impossible nor unthinkable.”85 Yet it is also true that some people
79 Ibid. 80 Ibid. 81 Ibid. 82 Ibid at 15-16. 83 Harry Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988) at 188. 84 Ibid. 85 Lenta, supra note 17 at 250. 125
“wholeheartedly identify with certain moral commitments such that they find acting inconsistently with them unthinkable.”86 By “unthinkable”, Frankfurt means that a person cannot form an effective intention to commit the act.87 It may also be that an act is unthinkable for amoral reasons. I may consider a certain career unthinkable because of my personality or skillset.
If the sight of blood terrifies me, a career as a thoracic surgeon is unthinkable for me.
The point I wish to make here is that unthinkable acts often play a significant role in the makeup of a person’s identity, such that persons would seriously undermine their identities if they commit them. At the same time, many of these acts have moral – and thus conscientious – implications insofar that they are unthinkable for a person because she deems them immoral.
When a person says “I cannot do X” for reasons of conscience, this may reflect a fundamental reference to the self. X is unthinkable for that person because she would, in effect, be someone else if she were to do it. It strikes me that, among the reasons why a person might deem an action unthinkable, moral reasons are common. In explaining unthinkable acts, Frankfurt refers to military officers who refuse, for moral reasons, to follow an order to launch nuclear weapons.88
Identity and Moral Agency
Moral agency is a third intersection point between conscience and identity. I suspect that most persons count the freedom to exercise their moral agency – their capacity to discern what is morally right and wrong and to act accordingly – as not only the manifestation of living conscientiously but also the expression of what is fundamental to their identity.
Bernard Williams explores this intersection point for conscience and identity in his critique of utilitarianism. Williams argues that utilitarianism fails to sufficiently respect human
86 Ibid. 87 Frankfurt, supra note 83 at 187. 88 Ibid at 182. 126 beings as moral agents and thereby undermines their integrity-as-identity. He focuses his criticism on act-utilitarianism, which holds that human beings must view as morally obligatory those acts that maximize the well-being of the population. He gives the example of George, a chemist who conscientiously objects to chemical and biological warfare. George is rather sickly, which makes it more difficult for him to find work. His wife must work to support the family, which creates strain on their marriage and adversely affects the upbringing of their children.
George is offered a lucrative job in a biological-chemical warfare factory. Should he not take the job, another chemist will take it and carry out the required duties with greater enthusiasm. The right action per utilitarianism is to take the job but, assuming that George is not a utilitarian, this action will require him to violate his conscience and undermine his moral identity.89
Williams argues that George should refuse the job: he will thereby protect his identity, which is largely defined by his moral commitments. His moral commitments sit at the core of his identity – they are, in large part, “what his life is about”.90 Williams appears to suggest that a person’s “deeply held commitments are constitutive of his identity, so that if he is required to act inconsistently with his deeply held moral commitments” he will “become alienated from himself.”91 This identity-based conception of integrity posits that requiring a person to “break faith with their deep commitments represents an undermining of the self that threatens to undermine the capacity for practical moral agency.”92 The harm to George is not only a matter of him being forced to violate his integrity-as-identity, but also the disrespect for his moral agency.
89 Elizabeth Ashford, “Utilitarianism, Integrity, and Partiality” (2000) 97:8 J Philosophy 421-39 at 422. 90 Bernard Williams, “A Critique of Utilitarianism”, in JJC Smart and Bernard Williams, Utilitarianism: For and Against (New York: Cambridge 1973) 77 at 116. 91 Lenta, supra note 17 at 252. 92 Ibid. 127
There is, I believe, fundamental value in allowing persons to stand, as Cheshire Calhoun puts it, on “some bottom-line principles that define what the agent is willing to have done through her agency”.93 Act-utilitarianism, meanwhile, can transform a person “into a channel between the input of everyone’s projects, including his own, and an output of optimific decision” at the expense of ignoring the extent to which a person’s actions and decisions “flow from the projects and attitudes with which he is most closely identified.”94 Act-utilitarianism, in other words, makes “no room for an agent to give special weight to personal commitments, causes, projects, and the like” – it recognizes “no personal sphere of activity in which moral reflection operates merely as a side-constraint.”95 By devaluing the personal significance of exercising moral agency, both identity and conscience suffer.
Williams is not alone in citing a person’s moral agency as a reason to respect freedom of conscience. Daniel Weinstock argues that, to the “extent that her sense of who she is as a person is partly constituted by the ongoing activity of thinking for herself about moral issues, a state that did not protect conscience, and that did not allow the individual to act according to the conclusions of her moral reasoning would fail to display appropriate respect for her as a moral agent.”96 Jocelyn Maclure and Charles Taylor also distinguish between core commitments and mere preferences on the basis of moral agency: only core commitments are “intimately connected to my self-understanding as a moral agent.”97
Establishing and illuminating the interrelationship between conscience, integrity, and identity goes some of the distance in explaining the normative rationale for including freedom of
93 Calhoun, supra note 12 at 246. 94 Williams, “A Critique of Utilitarianism”, supra note 90 at 116-117. 95 Stanford Encyclopedia of Philosophy, “Integrity”, supra note 21. 96 Daniel Weinstock, “Conscientious Refusal and Health Professionals: Does Religion Make a Difference?” (2014) 28:1 Bioethics 8 at 9. 97 Maclure & Taylor, supra note 55 at 91. 128 conscience in a bill of rights. To travel further down this intellectual road, attention must also be paid to the harm that follows where a person violates her conscience and thereby betrays her identity or injures her integrity. These ramifications have been alluded to already, but a more focused evaluation of them follows.
III. Injury to Conscience
All human rights guard against some sort of injury. This Part moves from investigating the normative reasons why freedom of conscience appears in bills of rights (integrity and identity) to the question of what harm occurs where a person violates conscience (and injures her integrity and identity). I seek answers to this question through recourse to empirical evidence in psychiatric and psychological scholarship, the world of fiction, and human dignity.
Moral Distress and Injury
This section investigates the psychological harm experienced by a person who violates her conscience. This sort of harm has been termed moral distress: a “concrete phenomenon, having identifiable constraints, psychological characteristics, and causes.”98 Moral distress can arise with the “presence of constraints, either internal (personal) or external (institutional)” that
“prevent one from taking actions that one perceives to be morally right.”99 In short, moral distress may arise if a person violates her conscience. While moral distress manifests itself in a variety of ways depending on the individual and the nature of the constraint on conscience, the
“psychological characteristics of moral distress have been described consistently as involving
98 Elizabeth G Epstein & Anne B Hamric, “Moral Distress, Moral Residue, and the Crescendo Effect” (2009) 20:4 J Clinical Ethics 330-342, accessed via US National Library of Medicine (National Institutes of Health), online:
Moral distress, however, is not the equivalent of psychological distress. While the two are related, moral distress is “the result of a perceived violation of one’s core values and duties, concurrent with a feeling of being constrained from taking ethically appropriate action.”103
Psychological distress, meanwhile, “describes emotional reactions to situations, but does not necessarily involve violation of core values and duties.”104 The precise nature of the relationship between moral and psychological distress appears to be an unresolved question.
Moral distress or injury has been the subject of particular attention in the context of military service. The Moral Injury Project, a research initiative at Syracuse University, studies the experiences of members of the armed forces who, during their military service, have suffered moral distress and subsequent psychological injury. The Moral Injury Project defines “moral injury” in the context of military service as the “emotional and spiritual impact of participating in, witnessing, and/or being victimized by actions and behaviors which violate a service member’s core moral values and behavioral expectations of self or others.”105 The Project also offers a broader definition of moral injury: “the damage done to one’s conscience or moral compass when that person perpetrates, witnesses, or fails to prevent acts that transgress their own
100 Ibid. 101 Chandran Kukathas, The Liberal Archipelago (Oxford: Oxford University Press, 2003) at 55. 102 Mark Wicclair, supra note 64 at 11. 103 Epstein & Hamric, supra note 98 at 2. 104 Ibid. 105 The Moral Injury Project (Syracuse University), “What Is Moral Injury” (accessed 8 February 2019), online: < http://moralinjuryproject.syr.edu/about-moral-injury/>. 130 moral and ethical values or codes of conduct.”106 The term “moral injury” in the military context is often attributed to Camillo Bica (a Vietnam war veteran, peace activist, and philosopher).107
Diane Silver describes moral injury during armed conflict as “a deep soul wound that pierces a person’s identity, sense of morality and relationship to society.”108 This reference to the soul echoes the statement of Roger Williams, the founder of Rhode Island, who remarked that coercing violations of conscience in religious matters amounts to “soul rape.”109
Research on moral injury in the military context reveals that violations of conscience cause or contribute to psychological harm. While the harrowing circumstances of armed conflict certainly plays a role, the scholarship on this topic nonetheless focuses on and attributes the harm to the commission of the act that the injured person considers immoral. Moral injury, harm, or distress has also been discovered in other contexts such as healthcare. Conscientious objection in healthcare is explored in Chapter 5. The key point, for the moment, is that a person’s violation of her conscience can inflict significant and tangible self-harm. It should not surprise that an act of self-betrayal – a profound compromising of oneself – can have this sort of impact.
The Guilty Conscience
The previous section dealt with the harm to a person who knowingly violates her conscience. This section shifts focus to the equally tangible harm that visits a person who wilfully violates her conscience but later comes to grips with that violation. This phenomenon has appeared often in fictional and dramatic literature. Hannah Arendt considers the case of a person who chooses to live unconscientiously – the person with the “absent” conscience that is
106 Ibid. 107 See Camillo M Bica, Beyond PTSD: The Moral Casualties of War (New York: Gnosis Press, 2016). 108 Diane Silver, “Beyond PTSD: Soldiers have injured souls”, Truthout (3 September 2011), online: < http://www.truth-out.org/news/item/3112:beyond-ptsd-soldiers-have-injured-souls>. 109 Edward J Eberle, “Roger Williams on Liberty of Conscience” (2005) 10:2 Roger Williams U L Rev 289 at 293. 131 left “at home” but later interrogates the person when he returns.110 She cites the Hippias Major dialogue, wherein Socrates tells Hippias how fortunate Hippias is because, at home, someone awaits Socrates “who always cross-examines him.”111 Arendt identifies this “obnoxious fellow” as the conscience of Socrates.112 She also refers to Shakespeare’s Richard III, in which King
Richard recalls his many crimes (such as murder for political gain) upon waking from a dream in which his victims haunt him and herald his imminent death:
O coward conscience, how dost thou afflict me! The lights burn blue. It is now dead midnight. Cold fearful drops stand on my trembling flesh. What do I fear? myself? there's none else by: Richard loves Richard; that is, I am I. Is there a murderer here? No. Yes, I am: Then fly. What, from myself? Great reason why: Lest I revenge. What, myself upon myself? Alack. I love myself. Wherefore? for any good That I myself have done unto myself? O, no! alas, I rather hate myself For hateful deeds committed by myself! I am a villain: yet I lie. I am not. Fool, of thyself speak well: fool, do not flatter. My conscience hath a thousand several tongues, And every tongue brings in a several tale, And every tale condemns me for a villain.113
For Arendt, conscience in these examples from Socrates and Shakespeare “appears as an afterthought, that thought which is aroused by either a crime, as in the case of Richard himself, or by unexamined opinions, as in the case of Socrates, or as the anticipated feat of such afterthoughts, as in the case of the hired murderers in Richard III.”114 This form of conscience, which differs from the “voice of God within us or the lumen naturale, gives no positive
110 Hannah Arendt, “Thinking and Moral Considerations: A Lecture” (1971) 38:3 Soc Research 417 at 443. 111 Ibid. 112 Ibid. 113 William Shakespeare, Richard III, Act V, Scene III, online:
A final literary example of the distress caused by ignoring conscience and later coming to grips with moral misdeeds is Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde.
The story revolves around the connection between the respected Dr. Henry Jekyll and the evil
Edward Hyde. The reader eventually learns that these characters are one and the same person.
Dr. Jekyll, by drinking a potion, drastically transforms his physical appearance to become
Edward Hyde. With this disguise, he indulges in vices that he does not wish to commit as Jekyll for fear of losing his social position. After Jekyll reveals this secret to the reader, he makes a number of references to conscience that not only support the notion that conscience primarily concerns action but also that conscience links to integrity and self-respect. Jekyll, writing in the third person, describes how “Henry Jekyll stood at times aghast before the acts of Edward Hyde; but the situation was apart from ordinary laws, and insidiously relaxed the grasp of conscience.”117 He goes on: “It was Hyde, after all, and Hyde alone, that was guilty.”118 Jekyll, however, “was no worse; he woke again to his good qualities seemingly unimpaired; he would even make haste, where it was possible, to undo the evil done by Hyde. And thus his conscience slumbered.”119 The fact that Jekyll is impelled to try and undo the wrongs of Hyde speaks to
Jekyll’s guilty conscience. While Jekyll professed that he was not bothered by the immoral acts of Hyde, it becomes clear, as one psychiatrist puts it, that Jekyll “chose to keep conning his own
115 Ibid. 116 Shakespeare, supra note 113 at Act I, Scene IV. 117 Robert Louis Stevenson, Strange Case of Dr. Jekyll and Mr. Hyde (London: Longmans, Green, and Co, 1886) at 118-119. 118 Ibid at 119. 119 Ibid. 133 conscience which inevitably led him to a tragic end.”120 The story ends with Jekyll’s death after it became apparent that he could no longer control the transformation from Jekyll to Hyde (and back again), such that he would become Hyde permanently.
Conscience and Dignity
The two previous sections discussed the psychological harm that violations of conscience can cause. I submit that violations of conscience can also harm human dignity. It is no accident, in my view, that dignity and conscience appear in close proximity in Article I of the Universal
Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”121 I do not think it is controversial to suggest that living conscientiously is both a feature and a demand of human dignity; that to deny freedom of conscience is to deny part of what it means to be truly human. The universality of conscience – the idea that each person has a conscience – supports this idea.
The discussion of dignity by the Supreme Court of Canada in Law v Canada, a decision on the equality guarantee in the Charter, resonates with what has been said so far in this chapter on the connections between conscience, integrity, identity, and other interests such as self- respect.122 In Law, the Court noted that dignity “means that an individual or group feels self- respect and self-worth.”123 This concept is “concerned with physical and psychological integrity
120 NS Xavier, Fulfillment Using Real Conscience: Practical Guide for Psychological and Spiritual Wellness (Bloomington: AuthorHouse, 2009) at 43 (emphasis in original). 121 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, art I. 122 Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1 [Law cited to SCR]. 123 Ibid at 530. 134 and empowerment.”124 Harm to dignity occurs in the presence of “unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.”125 Dignity is protected “by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.”126 Dignity is injured when persons or groups “are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.”127 The discussion of dignity in Law touches on many concepts that relate to freedom of conscience, such as identity (in the sense of self-respect and self-worth) and psychological integrity. On self- respect, Michael McGann argues that laws which require a person to violate her conception of the good may wound her self-respect in terms of “individuals having a sense of their own dignity and standing as equal persons whose needs and interests matter as much as those of their fellow citizens and who are equally capable of leading their lives from within.”128 John Rawls argues that a society that fails to ensure equal citizenship has taken the step, in respect of persons who are subordinated, of “publicly establishing their inferiority as defined by the basic structure of society.”129 This “subordinate ranking in public life”, in the view of Rawls, “would indeed be humiliating and destructive of self-esteem.”130
Ronald Dworkin also touches on the connection between freedom of conscience and dignity. In Religion Without God, Dworkin notes in a chapter on religious freedom that theistic religions impose “serious duties and responsibilities, including not just duties of worship and diet
124 Ibid. 125 Ibid. 126 Ibid. 127 Ibid. 128 McGann, supra note 73 at 16. 129 Rawls, supra note 72 at 478. 130 Ibid. 135 but also social responsibilities.”131 Governments may be justified in refusing to accommodate action based on these duties and responsibilities, but where such justification is absent, a government “that prohibits its people from respecting those duties profoundly insults their dignity and their self-respect.”132 While Dworkin does not refer specifically to freedom of conscience, his reference to non-religious persons suggests that he is discussing more than just religious freedom. The chapter begins with a reference to Article 18 of the UDHR, which protects freedom of religion as well as freedom of thought and freedom of conscience.133 In
Dworkin’s view, “these considerations do not justify a freedom that is limited to the exercise of orthodox, godly religions, because atheists often have convictions of duty that are for them equally imperative.”134 The relevance of conscience is apparent when Dworkin identifies pacifism and conscientious objection to military service as an example of such a conviction.135
There is little doubt that conscience and dignity are closely related. The Supreme Court of
Canada, in its first consideration of s. 2(a), noted the “relationship between respect for individual conscience and the valuation of human dignity.”136 While dignity could be presented as a freestanding justification for including freedom of conscience in a bill of rights, I submit that integrity and identity, the two principal normative reasons for including freedom of conscience in a bill of rights, are the particular aspects of dignity that freedom of conscience safeguards.
131 Ronald Dworkin, Religion Without God (Cambridge: Harvard University Press, 2013) at 113. 132 Ibid. 133 Ibid at 105. 134 Ibid at 114. 135 Ibid. 136 Big M Drug Mart, supra note 40 at 346. 136
IV. Figures of Conscience
This Part tests the propositions made in respect of the two issues covered in this chapter thus far – (i) the interrelationship between conscience, integrity, and identity and (ii) the harm that flows from violations of conscience – against examples of persons who followed conscience and their reasons for doing so.
The first example is a professional golfer from the United States named Tanner Briele.137
The news article on his story begins somberly: “Tanner Briele was mired with a moral dilemma.”138 Briele was playing his second round of the European Tour Qualifying School in the
United Kingdom in 2016. On his drive at the seventeenth hole, his ball – a Titleist 2 Pro V1 – landed in the tall grass. While searching for the ball, his playing partner found a ball bearing the same brand. Briele recovered that ball from the grass, placed it on the green, and scored a birdie.
As he put it, it “would have been the shot of the tournament had it been on television.”139
As Briele walked to the next hole, however, he realized he had not played his own ball out of the grass. Briele now found himself in a dilemma, as the rules stipulated that playing a ball that is not one’s own is grounds for disqualification. Briele, “distraught and in a difficult situation”, said he “probably had 20 thoughts … in 15 seconds”.140 He thought about the cost of the trip to the UK, the amount of time and effort he had invested to reach this moment in his golf career, and the possibility that no one would ever find out. He was in the running to advance to the next stage of the tournament, but he thought about the reputation of his friends and family as well as the “aspiring golfers he wants to set an example for”.141 He ultimately admitted his
137 Adam Thompson, “Golf: Golfer Briele Chooses Integrity Over Dishonesty”, New Bern Sun Journal (22 September 2016), online:
The second example is boxer Muhammad Ali. He conscientiously refused conscription into the US military in 1967 for the Vietnam War on religious grounds and in light of his opposition to the War. The consequences of this decision for Ali were severe. The World Boxing
Association stripped him of his world heavyweight championship and prohibited him from boxing for three years. Ali was arrested, tried and found guilty of evading military service.
Although he successfully appealed his conviction before the US Supreme Court in 1971, by then he had gone four years without boxing. Speaking of this episode, Ali said:
My conscience won't let me go shoot my brother, or some darker people, or some poor hungry people in the mud for big powerful America. And shoot them for what? They never called me nigger, they never lynched me, they didn't put no dogs on me, they didn't rob me of my nationality, rape and kill my mother and father. … Shoot them for what? How can I shoot them poor people? Just take me to jail.145
Shortly after Ali’s death, a journalist reflected on this episode, stating that Ali demonstrated the
“varied bridges he refused to cross at the expense of his dignity, his integrity, his self-worth and self-respect, all which he held up higher than any amount of power, fame and glory.”146
142 Ibid. 143 Ibid. 144 Ibid. 145 DeNeen L Brown, “Shoot them for what?’ How Muhammad Ali won his greatest fight”, The Washington Post (16 June 2018), online: < https://www.washingtonpost.com/news/retropolis/wp/2018/06/15/shoot-them-for-what- how-muhammad-ali-won-his-greatest-fight/?noredirect=on&utm_term=.5278c8dcc677>. 146 Warren J Blumenfeld, “Integrity and A Bridge Too Far”, The Huffington Post (8 June 2016), online:
A discussion of conscientious figures would be incomplete without mention of Thomas
More, who is often considered history’s exemplar of following conscience. This lawyer, statesman, writer, and Lord Chancellor of England famously refused to take an oath that would have recognized King Henry VIII as the head of the new Church of England. The case of More is, on the surface, one of religious freedom: More refused to support a schism from the Catholic
Church. However, I consider his case to be – at its core – one of conscientious objection to taking an oath that would betray his belief in what he considered to be a fundamental truth.
Henry VIII created the Church of England (and declared himself its head) because the
Pope refused to declare his marriage to Catherine of Aragon, who had not borne him a male heir, null – a declaration that the King needed to lawfully remarry. A devout Catholic, Thomas More could not in good conscience take the oath. He believed that there was one Church (the Catholic
Church) and one head of that Church (the Pope). For refusing to take the oath, More was imprisoned in the Tower of London in 1534 and – after “fourteen months of interrogation, physical torture, and isolation” – beheaded on July 6th, 1535 for high treason.147
During his imprisonment, Thomas More wrote letters that touch on conscience. These letters suggest that More felt unable to take the oath because, in doing so, he would deny what he believed was the truth: there is only one Church and one head of that Church. During his first interrogation in the Tower of London, More expresses that the situation precluded him from obeying the King’s wishes because “in my conscience the truth seemed on the other side”.148
147 Marc D Guerra, “Thomas More’s Correspondence on Conscience”, Acton Institute For the Study of Religion and Liberty (20 July 2010), online:
Steven Smith argues that, “for More, conscience was inseparably connected to truth – even, to use a modern designation, to Truth.”149
While More does not say so explicitly, he implies that he found it unthinkable to swear the oath not only because it encapsulated a serious falsehood, but because to take an oath of that sort would be an immoral act (namely a lie). By taking the oath, More would betray himself. In
A Man For All Seasons, the play by Robert Bolt on More’s final years that was transformed into an Oscar-winning film, More says to his daughter Margaret: “When a man takes an oath, Meg, he’s holding his own self in his own hands. Like water … and if he opens his fingers then – he needn’t hope to find himself again.”150 More may have detected the interrelationship between conscience, integrity, and identity. He is credited as the first writer to use the word “integrity” in
English.151 His most famous statement (and his last words) speak to his integrity in the sense of self-integration: “I die the King’s good servant and God’s first”.152 One author notes that this declaration “underscores More’s claim that integrity is possible in political and personal life.”153
The case of Thomas More invites deeper consideration of how freedom of conscience relates to truth – a possible point of intersection between conscience and integrity. We find further evidence of the link between conscience and integrity in the connection that is commonly made between conscience and truth – more specifically, the pursuit of truth and the moral imperative to tell the truth. I suspect most persons would say that a person who knowingly and deliberately lies violates his conscience and, in so doing, exhibits a lack of integrity. While truth is difficult to define, it is often spoken of in relation to notions like reality, objectivity, and
149 Steven D Smith, “Interrogating Thomas More: The Conundrums of Conscience” (2003) 1:1 U St Thomas LJ 580 at 603. 150 Robert Bolt, A Man For All Seasons (Bellhaven House: Scarborough, 1963) at 83. 151 Wegemer & Smith, supra note 148 at 212. 152 Ibid at 355, 357. 153 Ibid at 212. 140 morality – to something that “conforms with fact or reality.”154 Conscience is often linked to the pursuit of moral truth – as engaging matters of fact in the moral realm.
Philosophically, conscience is also concerned with truth in the sense of not lying – what many people would consider to be a moral imperative. The word “conscience” appears frequently in Canadian legislation and case law in relation to a witness who takes an oath to tell the truth in court. A key factor in determining the oath’s efficacy is whether it binds the conscience of the witness.155 The “essence” of an oath has been described as impressing upon a witness’ conscience the obligation to tell the truth.156 The connection between truth and conscience also appears in the assessment of the credibility of witnesses: “In cross-examination especially [the accused] impressed me as a man of conscience who placed some value upon the truth”.157 In one case, the judge “could not say” definitively that a witness “was not telling the truth” – but, if she were lying, “that is a matter of conscience she will have to live with.”158
Finally, truth and conscience also appear in close proximity when a person is described as having felt compelled to tell the truth to obtain a clear conscience. Commenting on the video recording of an accused person’s interview with the police in the case of a young woman’s death nearly 35 years earlier, a judge in Saskatchewan found it “obvious” that “the accused is determined to tell the police his recollection in an attempt to clear his conscience”.159 The accused admitted in the interview that, 33 years earlier, he perjured himself by lying about his involvement in the woman’s death in his first statement to the police.160
154 Oxford English Dictionary Online, sub verbo “truth”, online:
Truth has been identified as a value protected by freedom of expression in section 2(b) of the Charter. The Supreme Court of Canada has repeatedly identified the “search for truth” as a
“core value underlying freedom of expression.”161 This idea may at times go too far given that there are forms of expression that have little or nothing to do with the pursuit of truth. Freedom of expression, for example, protects commercial expression. In a 1988 decision, the Supreme
Court of Canada invalidated a Quebec law that required all signs to be exclusively in French.162
Freedom of expression has also been interpreted to protect picketing.163 The notion that freedom of expression is not always concerned with truth is aptly illustrated by the Supreme Court’s decision in 1992 that invalidated the crime of spreading false news.164
I do not dispute the pursuit of truth as a value underlying freedom of expression. I simply submit that this value also underlies freedom of conscience. This position finds support if one understands freedom of conscience as primarily (if not exclusively) relating to human activity, which is inevitably expressive. The delineation between freedom of conscience and freedom of expression may be that where the expressive activity is carried out with the maintenance of integrity or identity as the most immediate concern, freedom of conscience is likely at work. The decision to make a speech or publish an article decrying abortion as immoral is a matter for freedom of expression, whereas the refusal to perform an abortion is a matter for freedom of conscience. In other words, it may be that freedom of expression protects the pursuit of truth in terms of knowledge while freedom of conscience protects a person’s freedom to live in
161 R v Keegstra, [1990] 3 SCR 697, 117 NR 1; Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at para 171, [2013] 1 SCR 467; Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 at para 72, [2002] 2 SCR 522. 162 Ford v Quebec, [1988] 2 SCR 712, 54 DLR (4th) 577. 163 BCGEU v British Columbia (Attorney General), [1988] 2 SCR 214, 53 DLR (4th) 1. 164 R v Zundel, [1992] 2 SCR 731, 95 DLR (4th) 202. 142 accordance with that knowledge once he possesses it. Freedom of conscience concerns complicity or involvement in a matter of moral knowledge.
While the individual is often the focus of a discussion on conscience, this tendency neglects the relational or external nature of conscience. If freedom of conscience is about action, focus on the internal forum misunderstands this freedom. The rubber hits the road for conscience when a person manifests her moral judgments by deeds. This step moves the analysis beyond that individual; it implicates third parties who are affected by these deeds. In this sense, conscience just as much relational as it is individual – if not more so. This chapter has sought to demonstrate why, to quote Charles Taylor, an external or conduct-based view of conscience (and thus freedom of conscience) is, apart from being correct as a matter of principle, “preferable to the privatized, personalized conscience that amounts to meaninglessness.”165
In the previous chapter, I suggested that freedom of conscience may have a collective dimension in addition to the (intuitive and more apparent) individual dimension. The discussion in this chapter, with its focus on personal identity and integrity, seems to push against the notion of freedom of conscience in the collective sense. I agree that the collective sense of freedom of conscience – if it exists – is more challenging to detect than the collective sense of religious freedom. Here, I would reiterate a point made in the previous chapter. Individuals who share a moral conviction can – and do – join together to further that conviction. Environmental groups, anti-abortion groups, and animal rights groups are examples. Such a group would arguably betray its identity and integrity if it were to violate the moral convictions that bind it together.
165 Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989) at 18. 143
Conclusion
If, as I submit, freedom of conscience is best interpreted as our freedom to live in alignment with our moral commitments, it is natural to question why persons desire that alignment and to investigate the normative reasons for enshrining this freedom in a bill of rights.
I proposed that these reasons are the values of integrity and identity. In other words, freedom of conscience matters because the ability to develop and preserve our integrity and identity matters.
If freedom of conscience is concerned with safeguarding personal integrity, it is not surprising that it would find its way into a bill of rights of a liberal democracy such as Canada.
Proponents of liberal democracy “have reason to take the preservation of individuals’ integrity seriously”166 because, as Kevin Vallier writes, liberalism “has always aimed to produce a society where all are free” – in other words, a “traditional reason to endorse liberalism is that it preserves the integrity of all citizens”.167 While integrity can be understood in several ways, freedom of conscience in a bill of rights safeguards integrity in the sense that, as Robert Vischer writes, it safeguards our ability to lead our lives as a coherent narrative in relation to our subjective but sincere moral judgments. These moral judgments and commitments factor significantly into an individual’s identity and sense of self: who I am and what I stand for. A person who is forced to violate her moral commitments will not simply experience regret. That person will compromise herself – her integrity and her identity – in a qualitatively different manner than the person who is prohibited, for one reason or another, from pursuing a preference, taste, or interest.
Aside from how conscience safeguards integrity and identity, this chapter has also demonstrated that a violation of conscience is neither a harmless nor a victimless occurrence. A person who violates her conscience may suffer tangible harm. Evidence of such harm – known
166 Lenta, supra note 17 at 247. 167 Kevin Vallier “Liberalism, Religion and Integrity” (2012) 90:1 Australasian J Philosophy 90:1 149 at 150. 144 as moral injury or distress – has been discovered in members of the armed forces who witness or participate in activities on the battlefield that violate their moral compass, but the psychological evidence reveals that this harm can also occur in less harrowing circumstances.
Despite the importance of the values and interests that stand behind freedom of conscience, this human right is – like all other human rights – not absolute. There are circumstances in which a person’s freedom of conscience must yield to public authority and be limited. But the limitability of freedom of conscience does not undermine the intrinsic value of the interests that animate it: integrity, identity, and related interests like dignity, truth, autonomy, and self-respect. In other words, while the “important interest” that individuals have in “being permitted to act consistently with their deeply held moral commitments and self-conceptions” offers a reason for granting “exemptions to permit them to act consistently with their perceived moral obligations”, the state nonetheless “may have an overriding interest in refusing” such a claim if the activity “would cause harm to others or violate their fundamental rights or substantially impede the fulfilment of an important state objective.”168 In the next chapter, I explore the question of when it is reasonable for states to limit freedom of conscience.
168 Lenta, supra note 17 at 254-255. See also William A Galston, The Practice of Liberal Pluralism (Cambridge: Cambridge University Press, 2005) at 68; and Amy Gutmann, Identity in Democracy (Princeton: Princeton University Press, 2003) at 175-176. 145
Chapter 4 – Limiting Freedom of Conscience Introduction...... 145
I. Limiting Human Rights ...... 147 Proportionality and the Value of Rights ...... 149 Alternative Measures and Reasonable Accommodation ...... 154 II. Proving Limits on Freedom of Conscience ...... 158 Material Cooperation ...... 162 Legal Responsibility for Action ...... 164 Objective or Subjective Test? ...... 168 III. Justifying Limits on Freedom of Conscience ...... 170 Harm ...... 170 Human Dignity ...... 171 Undue Hardship ...... 178 Conclusion ...... 182
Introduction
In a Charter claim, two legal inquiries occur. The first is whether the state’s action limits the Charter right. The second, if a limit is proven, is whether the limit is justified. The state can impose limits on Charter rights that are “prescribed by law”, “reasonable”, and “demonstrably justified in a free and democratic society.”1 This chapter investigates when, normatively speaking, freedom of conscience should be limited. I submit that the interests at stake in a claim under freedom of conscience – chiefly integrity and identity – shape the state’s latitude to limit this human right. The overarching claim of this thesis is that freedom of conscience should not be lightly limited given what it protects and why it is protected.
1 Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 146
This chapter refers to Canadian jurisprudence and scholarship on limiting Charter rights along with legal and philosophical scholarship from Canada and other jurisdictions on limiting human rights. Recourse in many countries to the principle of proportionality to assess limits on human rights means that this chapter will be of interest to jurists in Canada and abroad.
This chapter is divided into three parts. Part I contends that proportionality often overlooks the contributions of specific Charter rights to a “free and democratic society”. If freedom of conscience is vital to realizing such a society, this oversight endangers this freedom.
In applying proportionality, Canadian courts have also overlooked the state’s duty to demonstrate that alternative (but equally effective) measures that are less harmful to the right are infeasible. Part II considers how to determine if freedom of conscience has been limited. In my view, the minimum level of state interference that will limit this freedom is “material cooperation”: where the law obliges the claimant, on pain of legal sanction, to do something that meaningfully enables the commission of the perceived immoral act. Part III explores the second stage of a freedom of conscience claim under the Charter: whether the limit is justified. I identify and unpack three principles that, in my view, justify limits on freedom of conscience: harm, human dignity, and undue hardship for others.
This chapter exposes the neglect by Canadian courts to adequately investigate the relationship between Charter rights and a “free and democratic society” and to enforce the state’s duty to prove a lack of alternative measures that are equally effective and less infringing of Charter rights. This topic is important for this thesis because, in cases that implicate conscience, claimants often argue that the state can accommodate their conscience through alternative measures without compromising the legislative or policy goal in question. This 147 chapter also tackles limits to freedom of conscience – an aspect of this human right which, along with its substance and rationale, has rarely been considered.
I. Limiting Human Rights
In liberal democracies, human rights are generally not considered absolute. They are subject to limits.2 That said, limitation is an “exception to the general rule.”3 The general rule is the “protection of the right; the exception is its restriction.”4 Section 1 of the Charter, the limitation clause in this bill of rights, follows this rule. It declares that the Charter “guarantees” the rights and freedoms5 in it (the general rule) subject to certain restrictions (the exception).
All major human rights instruments allow limits on rights. The International Covenant on Civil and Political Rights lists several grounds on which various rights can be limited: protection of national security, public safety, order, health, morals, and the rights of others.6 The
European Convention on Human Rights is similarly structured. 7 The Supreme Court of Canada has, for the Charter, referred to “limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”.8 Section 1 of the Charter sets out a single standard of limitation for all Charter rights – a setup that differs from human rights instruments (such as the ICCPR or ECHR) that feature separate (and differing) textual
2 There are exceptions (eg, Article 3 of the European Convention on Human Rights absolutely guarantees freedom from “torture” or “inhuman or degrading treatment or punishment”). 3 Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional, and International Jurisprudence (New York: Cambridge University Press, 2002) at 184. 4 Ibid. 5 For reasons of brevity and flow, I use “Charter rights” as shorthand for “Charter rights and freedoms” (and “rights” as shorthand for “rights and freedoms”). 6 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 arts 12(3), 13(3) 14, 18(3), 19(3)(b), 21, 22(2) (entered into force 23 March 1976) [ICCPR]. 7 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 art 5 (entered into force 3 September 1953) [ECHR]. 8 R v Big M Drug Mart, [1985] 1 SCR 295 at 337, 18 DLR (4th) 321 [Big M Drug Mart]. 148 limitation clauses depending on the right. The text of section 1 of the Charter does not stipulate whether the standard for limitation applies in the same way to all Charter rights.
Despite the potential for limitation, human rights are considered capable of overriding other interests. Louis Henkin argues that human rights “enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods”.9 Human rights may be “sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary.”10 Henkin suggests that a limit on a human right is not justified simply because the competing interest is lawful or a public good. In the case of freedom of conscience, abortion and physician-assisted death come to mind. Even if the competing interest is guaranteed (at least to some extent) by another human right, this factor does not automatically trump exercises of human rights that stand in opposition to it.
Citing the lawfulness of X to curtail the exercise of a human right that opposes X illuminates the notion of “accommodating” rightsholders (for example, by granting them an exemption from the application of a law). The word accommodation gives the impression that the human right is a nuisance (to be begrudgingly tolerated) instead of an articulation of values and interests that cultivate a free and democratic society. Accommodation tends to obscure the fact that, in Canada, Charter rights form part of the “supreme law” and any inconsistent law is, to the extent of the inconsistency, “of no force or effect”.11
It is inevitable, in a plural society, to encounter others who live in ways that we judge to be wrong. If the judgment we make is a moral one, freedom of conscience enters the fray.
Freedom of conscience tests the extent to which the state can require a citizen to do something
9 Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990) at 4. 10 Ibid. 11 Constitution Act, 1982, s 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 149 that violates her moral convictions. The fact that the “something” is lawful does not end the analysis – even if its lawfulness flows from a right that is guaranteed by a bill of rights. The lawfulness rebuttal, so to speak, has not been recognized as a justification to limit human rights.
There must be something more at stake before it is justified to impose a limit on the right.
Proportionality and the Value of Rights
The superficial appeal of the lawfulness rebuttal to the exercise of a human right may be a side effect of proportionality, the key principle used by courts in many jurisdictions (including
Canada) to assess whether limits on rights are justified.12 In Canada, proportionality rarely grapples with the value of the human right to the “free and democratic society” mentioned in section 1 of the Charter. This defect has ripple effects: for example, on the state’s duty to demonstrate the absence of alternative measures for achieving its objective in a way that is less injurious of the Charter right. If the contribution of Charter rights to a free and democratic society were considered more deeply and more often, perhaps there would be greater enthusiasm for seeking alternative methods of achieving the legislative objective in question in ways that impair these rights to a lesser degree. I consider this issue in greater detail in the next section.
In R v Oakes (1986), the Supreme Court of Canada adopted proportionality for assessing limits on Charter rights.13 Two questions precede the proportionality analysis: (i) is the limit on the Charter right prescribed by law and (ii) is the purpose for which the limit is imposed pressing
12 See Grant Huscroft, Bradley W Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge: Cambridge University Press, 2014). 13 R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes]. 150 and substantial?14 If these questions are answered affirmatively, a so-called proportionality analysis follows. In general terms, it features three questions:
1. Is there a rational connection between the law’s objective and the limitation of the right?
2. Does the law minimally impair the right?
3. Are the benefits of the law worth the cost to the right?15
Since Oakes, the final step of the proportionality analysis – balancing the law’s positive effects for society against the negative effects for rights and rightsholders – has not been decisive in a section 1 analysis. The heavy lifting under section 1 has been performed at the minimal impairment stage and, to a lesser extent, at the rational connection stage.16 The minimal impairment stage is arguably the most stringent aspect of the legal test for justifying Charter limits. If a law is to fail the legal test for section 1, it is most likely to fail on this step. Laws that satisfy this step are unlikely to falter on the final step of the proportionality analysis (balancing the positive and negative effects of the law), which has proven to be less exacting.
In my view, the non-decisive status of the final stage of the proportionality analysis has fed the notion that all Charter rights are equally vulnerable to limitation. It is only at this stage of this analysis that the harmful impact of the limit on the right is actually considered, which requires the court to assess the value of the right both to the claimant and to the ideal of a free and democratic society. The structure of the Charter, with its single limitation clause that applies to all Charter rights, also gives the impression that all Charter rights are equally susceptible to limits. This impression is not conveyed in human rights instruments that feature multiple
14 At times, the “pressing and substantial” question is placed within the proportionality analysis. The structure of the proportionality analysis presented here reflects the structure in Oakes. 15 Oakes, supra note 13 at 138-140. 16 The Supreme Court of Canada noted this trend in the section 1 jurisprudence in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at paras 72-78, [2009] 2 SCR 567 [Hutterian Brethren]. 151 limitation clauses, each being tailored to a particular human right. The rare recourse to the final prong of the proportionality test in Canada has contributed to a broader failure by jurists to grapple with the idea that certain Charter rights may be more vital than others to a “free and democratic society” – the “ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified”.17 Apart from the structure and operation of the proportionality analysis, it is unclear why Canadian jurists have neglected to identify and unpack the content of this “ultimate standard” for limiting Charter rights.
The Supreme Court of Canada has implied that, among Charter rights, there is a spectrum regarding their importance to a free and democratic society. In Lyons, the Court noted that the Charter protects a bundle of values articulated as discrete rights, “some of which are more or less fundamental to a free and democratic society.”18 In Oakes, the Court suggested that all Charter rights are not equally prone to limitation: some limits, it noted, “will be more serious than others in terms of the nature of the right or freedom violated”.19 In a case decided shortly after Oakes, an appellate judge relied on this statement to propose that the presence of one limitation clause for all Charter rights does not mean that “we ought to consider every right to be of equal importance but rather that the courts are to decide which is more important.”20
Another rare example of support for this idea appears in Re Cromer, which concerned freedom of expression under the Charter. Lambert J.A. of the British Columbia Court of Appeal noted that section 1 “will apply much more often with respect to some Charter rights than with respect to others” – and with “some rights, it will apply very rarely indeed.”21 In general,
17 Oakes, supra note 13 at 136. 18 R v Lyons, [1987] 2 SCR 309 at 326, 44 DLR (4th) 193. As support for this statement, the Court cited its decision in Oakes (which was decided one year earlier). 19 Oakes, supra note 13 at 139-140 (emphasis added). 20 Black v Law Society of Alberta (1986), 27 DLR 4th 527, 1986 ABCA 68 (CanLII) at para 124. 21 Re Cromer and British Columbia Teachers’ Federation (1986), 29 DLR (4th) 641 at 657, 4 BCLR (2d) 273 (CA). 152 however, the idea that some Charter rights are more or less vulnerable to limitation has gained little traction in Canadian jurisprudence and legal scholarship. It is not so much that this idea has been rejected, but that Canadian jurists have paid little attention to this issue.
I do not assert that freedom of conscience is the Charter right that is least susceptible to limitation. I am suggesting, as some Canadian courts have, that not all Charter rights are equally vital to the free and democratic society that the Charter envisions. In my view, freedom of conscience sits on the “more vital” end of that spectrum – an idea that also appears to enjoy judicial endorsement. In Big M Drug Mart, the Supreme Court noted that the “rights associated with freedom of individual conscience” represent the essential ingredient of the “political tradition underlying the Charter.”22 The Court identified an “emphasis on individual conscience and individual judgment” as residing “at the heart of our democratic political tradition”, given that the “ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government.”23
In Morgentaler, Wilson J. cited these statements in Big M Drug Mart and opined that the
“basic theory underlying the Charter” is that “the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.”24 This form of respect, in her view, engages human dignity.25 In a similar vein,
Ronald Dworkin noted that the state fails to treat its citizens “as equals if it prefers one conception” of the good life to another, “either because the officials believe that one is intrinsically superior, or because one is held by the more numerous or more powerful group.”26
22 Big M Drug Mart, supra note 8 at 346. 23 Ibid. 24 R v Morgentaler, [1988] 1 SCR 30 at 166, 44 DLR (4th) 385 [Morgentaler]. 25 Ibid. 26 Ronald Dworkin, “Liberalism,” in Michael J Sandel, ed, Liberalism and its Critics (New York: NYU Press, 1984) 60 at 64. 153
However, the extent to which certain Charter rights may be more vital to an individual’s pursuit of the good life – the “basic theory” animating the Charter – has been insufficiently considered.
Critics of the notion that freedom of conscience deserves a thicker shield from limitation may argue that it violates the principle that there is no hierarchy of Charter rights. This principle, however, emerged in cases featuring a collision of two or more Charter rights.27 In such cases, the Supreme Court of Canada has rejected the approach of simply identifying one right as more important to resolve the collision. The Court has instead prescribed the approach of seeking to reconcile the conflicting rights. Where reconciliation is impossible due to the nature of the conflict, a balancing of the interests at stake is undertaken.28
The anti-hierarchy principle is rarely stated in Charter cases featuring no collision of
Charter rights because there is no potential for a hierarchy in such cases. Even in collision cases, it is arguable that one can “believe both in some degree of hierarchy and in balancing.”29 In cases of irreconcilable conflicts between rights, affording priority to one right over the other – in light of the facts of the case – must inevitably occur to resolve the dispute. While it could be said that a hierarchy between the two rights is established in that case, the result does not establish a permanent hierarchy between the two rights whenever they clash in future litigation. The
Supreme Court of Canada appears to have endorsed this approach in the Charter context.30
I submit that certain Charter rights deserve greater protection from limitation in light of the values that these rights protect and what is at stake for the citizen when these rights are threatened. For freedom of conscience, these values include integrity, identity, dignity, self-
27 Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835, 120 DLR (4th) 12. 28 Reference re Same-Sex Marriage, 2004 SCC 79 at para 50, [2004] 2 SCR 698 [Reference re Same-Sex Marriage]. The precise nature of the distinction between balancing and reconciling two (or more) conflicting rights remains a topic of debate. 29 Kent Greenawalt, “Individual Conscience And How It Should Be Treated” (2016) 31:3 JL & Religion 306 at 308. 30 R v NS, 2012 SCC 72 at para 85, [2012] 3 SCR 726 (Abella J) [NS]. See also Reference re Same-Sex Marriage, supra note 28 at para 50. 154 worth, moral agency, and at times the choice between self-betrayal and retreating from public life. The citizen who finds herself in a crisis of conscience because of state action is in an unenviable position. She must either violate her conscience (and thereby harm herself) or retreat from the circumstances that threaten her conscience (and thereby suffer potentially significant financial, professional, and dignity-related consequences). I submit that, given these features and implications, freedom of conscience deserves a thick shield from limitation.
Aside from the lack of judicial engagement with the value of Charter rights to the maintenance of a free and democratic society, there is another section 1 issue that has been inadequately considered and is especially relevant in freedom of conscience cases. The issue is the extent to which the state, when it attempts to justify a limit on a Charter right, must demonstrate that it could not have achieved its legislative objective through alternative measures that infringe the Charter right to a lesser degree or not at all.
Alternative Measures and Reasonable Accommodation
Discussion of alternative measures is a rare sight in a section 1 analysis. Yet in Oakes, the seminal ruling on section 1, the Supreme Court of Canada held that courts must be informed of “what alternative measures for implementing the objective were available to the legislators when they made their decisions.”31 Since Oakes, how and when this knowledge is communicated by the state to courts has fallen off the radar. While reference to alternative measures has appeared in subsequent case law of the Supreme Court of Canada,32 the Court of Canada has not quoted the statement in Oakes on alternative measures since that ruling.
31 Oakes, supra note 13 at 347. 32 RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, 127 DLR (4th) 1. 155
Courts come closest to addressing the issue of alternative measures at the minimal impairment stage of the section 1 analysis – the stage, as mentioned earlier, that has most often been decisive in justification analyses. Here, courts investigate whether the limit impairs the right as little as possible. In Hutterian Brethren, the majority of the Supreme Court of Canada articulated the standard as “whether there are less harmful means of achieving the legislative goal”.33 The majority also noted, however, that courts must “accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives”.34
This type of judicial deference to legislatures does not “immunize the law from scrutiny at the minimal impairment stage”.35 The majority in Hutterian Brethren held that while the government is “entitled to deference in formulating its objective, that deference is not blind or absolute” – the key consideration is “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner”.36 More recently, the Supreme Court held that minimal impairment is established if the option chosen by the legislature falls “within a range of reasonably supportable alternatives”.37
The Supreme Court of Canada has acknowledged a “correspondence” between the minimal impairment analysis and the duty to accommodate, up to the point of undue hardship, individuals who seek exemptions from generally applicable standards on account of fundamental interests such as religion, sex, or sexual orientation.38 These exemptions are often described as
“reasonable accommodation”, a concept that is prominent in human rights disputes between
33 Hutterian Brethren, supra note 16 at para 53. 34 Ibid. 35 Ibid at para 55. 36 Ibid. 37 Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at para 101, [2013] 1 SCR 467 [Whatcott]. 38 Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para 52, [2006] 1 SCR 256. 156 citizens over issues such as discrimination in employment and provision of services to the public.39 In Multani, an orthodox Sikh high school student in Quebec sought an exemption from a policy prohibiting weapons at school to accommodate his religious practice of wearing a kirpan
(a ceremonial dagger worn by male orthodox Sikhs). Multani concerned the constitutionality of a policy decision by an administrative decision-maker (a school board) rather than the constitutionality of a law enacted by a legislature. Still, the Court applied the conventional
Charter analysis: has the Charter right been limited? If it has, is the limit justified?
The Court held that the refusal to allow the student to wear his kirpan – even in a concealed fashion – limited his religious freedom. At the section 1 stage of its analysis, the Court held that the “analogy with the duty of reasonable accommodation” helps to “explain the burden resulting from the minimal impairment test with respect to a particular individual.”40 The analogy emphasizes the need for consideration of alternative measures that are less infringing of
Charter rights. In the case of the student in Multani, the absolute prohibition against wearing a kirpan did not fall within a range of reasonable alternatives – one of which would be to wear the kirpan underneath the clothing and to secure it in a wooden sheath. Another case, Edwards
Books, also illustrates the correspondence between minimal impairment and reasonable accommodation.41 As José Woehrling writes, in that case the Court asked whether the state, in
“prohibiting stores from opening on Sundays and allowing certain exceptions for stores that were
39 Ibid at paras 130-136. 40 Ibid at para 52. After Multani, the majority in Hutterian Brethren clarified that the reasonable accommodation standard is only helpful where a “government action or administrative practice is alleged to violate the claimant’s Charter rights.” Where the “validity of a law is at stake”, reasonable accommodation does not aid the minimal impairment analysis. See Hutterian Brethren, supra note 16 at paras 66-67. 41 R v Edwards Books and Art Ltd, [1986] 2 SCR 713, 35 DLR (4th) 1 [Edwards Books]. 157 closed on Saturdays, had done enough to accommodate merchants who, for religious reasons, had to observe a day of rest on a day other than Sunday.”42
Entitlement to alternative measures is not absolute. These measures may, in the words of
Jocelyn Maclure and Charles Taylor, be refused if they would “significantly hinder the institution from realizing its aims (education, care, provision of public services, profit)”, create
“excessive costs or functional constraints”, or “impinge on the rights and freedoms of others”.43
In other words, alternatives must be reasonable. These authors cite an example from the religious freedom jurisprudence in Canada, though one can imagine a similar claim grounded in freedom of conscience. The case featured parents – Jehovah’s Witnesses – that refused, on the basis of religious freedom and parental authority, to let their daughter of almost 15 years receive a blood transfusion.44 The daughter also refused the procedure, but the hospital still performed it. The
Supreme Court of Canada concluded that the hospital justifiably infringed the parents’ Charter rights for the sake of the child’s right to life under section 7 of the Charter. As there was no alternative medical treatment, the child would have died if the parents’ claim had been respected.
Alternative measures – less infringing but equally effective means of achieving the state’s legislative objective – loom large in freedom of conscience claims. Individuals usually invoke conscience in the form of a refusal to do something that the state requires them to do on pain of legal sanction. A physician refuses to perform an abortion. A person refuses to go to war.
A marriage commissioner refuses to solemnize a same-sex civil marriage. These conscience- based refusals raise the question of whether the government can achieve its objective – be it
42 José Woehrling, “L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse” (1998) 43 McGill LJ 325-401 (translated in Multani, supra note 38 at para 53). 43 Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience, trans Jane M Todd (Cambridge: Harvard University Press, 2011) at 100-101. 44 AC v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181. 158 provision of abortion, access to civil marriage, or raising an army – in a way that is less injurious to freedom of conscience (or not injurious at all) than by following its chosen policy.
Where the state pursues the valid objective of ensuring access to services such as healthcare, it may be that policies can be implemented (without compromising that objective) to accommodate persons who invoke conscience. In certain cases, accommodation could be made with relative ease and for an insignificant cost. What if public health offices were created to help patients to find a physician that provides certain services? What about an online directory by which citizens could find a willing physician? Face-to-face conscientious refusals can likely be avoided by protocols that are not unduly burdensome or not burdensome at all. Administrative staff at a medical office could identify the services desired by patients and, with this information, assign patients to willing physicians. The specifics of such alternative measures and accommodation for freedom of conscience – and whether the existence of feasible alternative measures is decisive for legal claims under this freedom – will be explored in greater detail in the case studies on conscientious objection in relation to healthcare and civil marriage.
The notion that freedom of conscience deserves robust protection (and thus should not be easily limited) does not mean that this freedom is absolute. I will propose and unpack three limiting principles for freedom of conscience: harm, human dignity, and undue hardship for other persons. These principles, if satisfied, indicate that it is justifiable to limit freedom of conscience. Before turning to these principles, there is a preliminary issue that must be considered: What must be proven to conclude that the state has limited freedom of conscience?
II. Proving Limits on Freedom of Conscience
I have proposed that freedom of conscience protects the freedom to live in alignment with moral judgments, regardless of their source. At what point does state action limit that freedom? 159
The need to justify a limit on a Charter right only arises if the right has been limited. I suspect that the Supreme Court of Canada, when the moment comes for it to interpret freedom of conscience, will adopt a test resembling the one that it has crafted for freedom of religion. The
Court is unlikely to adopt an objective standard for matters of conscience alongside the existing subjective standard for matters of religion. In any event, conscience is arguably more subjective by nature than is religion (at least institutional religious traditions). For religious freedom, the claimant must establish a sincere religious belief that the state has interfered with in a way that is more than trivial or insubstantial.45 If that step is satisfied, a court will find a limit of religious freedom and then determine, under section 1, whether the limit is justified. I see no reason why
Canadian courts would deviate from the essence of this test for freedom of conscience. The test for freedom of conscience would thus require a claimant to establish a sincere moral conviction that the state has interfered with in a way that is more than trivial or insubstantial.
The rationale for identifying a level of interference as the criterion for finding a limit on religious freedom is to avoid the invalidation of state action that insignificantly burdens this right. Otherwise, the Charter “would offer protection from innocuous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship.”46 Canadian courts have occasionally ruled that the state’s interference with religious freedom is not serious enough to limit the freedom. In one case, a congregation of Jehovah’s Witnesses in British Columbia argued that the decision of the municipality where the congregation maintained a place of worship to discontinue a tax exemption limited the congregation’s religious freedom.47 The court held that the decision placed
45 Syndicat Northcrest v Amselem, 2004 SCC 47 at paras 56, 59, [2004] 2 SCR 551. 46 Edwards Books, supra note 41 at 759. 47 Trustees of Westwood Congregation of Jehovah’s Witnesses v City of Coquitlam, 2006 BCSC 1208, 272 DLR (4th) 675 [Trustees of Westwood Congregation]. 160 an “indirect burden on the practise” of the congregation members’ religion.48 While indirect burdens on religious practises could amount in certain cases to significant burdens on religious freedom, the court seemingly viewed the indirectness of the burden as a factor that rendered it insignificant and accordingly found no limit of religious freedom in the case.
What, then, are helpful criteria for determining whether state action interferes with freedom of conscience in a way that is more than trivial or insubstantial? In keeping with the scholarly neglect of freedom of conscience across legal systems that guarantee this human right, there is little scholarship on this issue. Exceptions include scholarship on conscientious objection in healthcare and marriage, topics which I will consider in Chapters 5 and 6.
Kent Greenawalt, an American legal scholar, has thoughtfully tackled the issue of limits on freedom of conscience. He argues that the interference threshold for a limit of freedom of conscience is met where a person is compelled to “perform or assist” the act that she judges to be immoral.49 Identifying performance is often straightforward – the outer limits of assistance less so. The doctor performs the abortion. The nurse assists the doctor by handing him medical instruments. There is likely little debate that requiring the doctor or the nurse to participate in abortions in these ways, against their moral convictions, would interfere with their freedom of conscience in a manner that is more than trivial or insubstantial.
In one of the few scholarly treatments of freedom of conscience by a Canadian legal scholar, Mary Anne Waldron describes a “sliding scale of interference” with this freedom.50 She argues that a claim for protection of this human right is probably strongest if the objection is
“against being forced to commit an act that one believes is wrong by the imposition of serious
48 Ibid at para 128. 49 Greenawalt, supra note 29 at 315. 50 Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013) at 199. 161 penalties against those who refuse.”51 State interference with an act that a person says her conscience mandates – like the vegetarian who opposes the killing of animals and so invades a slaughterhouse to release livestock52 – is not “as disturbing as an effort to force performance of an objectionable act”: for example, if the state were to require all citizens to eat meat or else pay a fine.53 Compulsion in the form of a legal obligation, then, is a crucial factor. So too is the penalty for defying that obligation. As Waldron notes, our “sympathies are most strongly engaged by those who resist the state’s efforts to compel them, under pain of serious penalty or death, to perform an action that they believe” is immoral.54
I agree with Waldron and Greenawalt: when the state requires a person to perform or assist with an act that she believes is immoral under pain of legal sanction, freedom of conscience has been interfered with in a way that is more than trivial or insubstantial. If conscience is fundamentally about moral action, being required by law to act immorally or face legal sanctions is a serious threat to freedom of conscience.
But where do we draw the line? When does interference with freedom of conscience become trivial or insubstantial? I would draw the line at material cooperation – a form of assistance. Where the state burdens freedom of conscience in a way that falls short of material cooperation, it has not limited this freedom. I turn now to the substance of material cooperation.
51 Ibid at 200. 52 Ibid at 198-199. Waldron demonstrates the sliding scale of interference with the example of a vegetarian who believes that it is immoral to kill animals. She provides a range of examples of state interference with this person’s moral conviction that vary in severity (from prosecuting her trespass of the slaughterhouse to the “extreme case” of legally obliging citizens to eat meat or “be forcibly confined and force-fed liquid meat products”). 53 Ibid at 200. 54 Ibid. 162
Material Cooperation
Material cooperation with an act is a topic of longstanding philosophical debate. The distinction between the form and matter of a thing, as explained by Aristotle and later by
Aquinas, underlies the idea of material cooperation.55 The starting point is a person who commits an act (the principal) and the person who assists that person (the cooperator). The doctor who performs the abortion is the principal. On the spectrum of cooperators, the first division is between formal and material cooperators. Formal cooperators intend the act to occur; material cooperators do not. The nurse who intends the abortion to occur and hands instruments to the doctor is a formal cooperator. Among material cooperators (who do not intend the act to occur), there is a division between immediate and mediate material cooperators. Immediate material cooperators provide material that is necessary for the act; mediate material cooperators provide material that is not necessary. The nurse who morally opposes abortion but hands instruments to the doctor is an immediate material cooperator. The manufacturer that makes the uniforms for the doctor and the nurse is a mediate material cooperator, as the uniforms are not necessary for the abortion to occur. There is a final subdivision under the heading of mediate material cooperators: proximate and remote. Proximate mediate material cooperators make contributions that lead to the commission of the act; remote mediate material cooperators make contributions that do not. The uniform manufacturer may be an example of the first and the janitor of the hospital may be an example of the second.56
55 Edward A Hartnett, “Catholic Judges and Cooperation in Sin” (2006) 4:2 U St Thomas LJ 221 at 232-233. 56 For a discussion of cooperation with immorality, see Laura Garcia, “Does God Cooperate with Evil?” in James P Sterba, ed, Ethics and the Problem of Evil (Bloomington: Indiana University Press, 2017) 57 at 57-89. In the field of moral philosophy, some argue that all material cooperators are guilty of the act except remote mediate material cooperators (if they have a sufficiently serious reason for contributing to the act). In other words, if the janitor works at the hospital that performs abortions (instead of a hospital that does not perform abortions) due to a lack of alternate employment and to provide for his family, this may be a sufficiently serious reason to cooperate – in a remote, mediate, and material sense – with abortions. 163
Principal (commits the act)
Cooperator (assists principal to commit the act)
Formal (intends the act Material (does not to occur) intend the act to occur)
Immediate (provides Mediate (provides necessary material for unnecessary material the act) for the act)
Proximate (contributes to the Remote (contributes to the act in a way that leads to its act in a way that does not commission) lead to its commission)
The question remains: what level of material cooperation interferes with freedom of conscience in a manner that is more than trivial or insubstantial (and thereby limits it)? I submit that the structure outlined above is a helpful guide. State action that requires (on pain of legal sanction) assistance with activity up to and including proximate mediate material cooperation interferes with freedom of conscience in a manner that is more than trivial or substantial. Remote mediate material cooperation – where a person makes a contribution that does not lead to the commission of the perceived immoral activity – does not limit this freedom.
This conclusion means that proximate mediate material cooperation is the threshold for a limit of freedom of conscience – that is, where the person makes a contribution that leads to the commission of the act perceived to be immoral. For the sake of concision, I shall refer to this 164 threshold simply as “material cooperation”. If the state requires a person to materially cooperate with the act in this way (or in a way that is more complicit with the act), it limits that person’s freedom of conscience. An analysis under section 1 of the Charter would then follow to determine if the limit on freedom of conscience is justified. The threshold that I propose for a limit on freedom of conscience is low, to account for the values that are at stake for a person who finds herself in a crisis of conscience (primarily integrity and identity).
If all forms of cooperation were to limit freedom of conscience, civil society would grind to a halt. Avoiding cooperation entirely is “virtually impossible and sometimes inconsistent with doing one’s duty.”57 Germain Grisez says this: “Grocers materially cooperate with gluttonous eating, letter carriers with the use of pornography” and “in many cases such people need their jobs to support themselves and their families” – and while “taxpayers materially cooperate with nuclear deterrence and other evils, paying taxes is morally obligatory”.58 Setting aside the debate on whether there is a moral duty to pay taxes, the point is that some degree of cooperation with what you consider immoral is unavoidable in a diverse liberal democracy. Granting individuals a right to refuse to cooperate in every scenario that disturbs their moral sensibilities would undermine the functioning of civil society.
Legal Responsibility for Action
The challenge of evaluating whether state action limits freedom of conscience – whether it requires a person to materially cooperate with perceived immoral activity – may be aided by other legal principles that hold persons responsible for the acts of others. The concept of aiding and abetting in criminal law, which determines when a person’s indirect participation in criminal
57 Germain Grisez, The Way of the Lord Jesus, Volume 3: Difficult Moral Questions (Quincy, IL: Franciscan Press, 1997) at 871. 58 Ibid. 165 acts attracts criminal liability, may be useful for determining what kind of conduct amounts to material cooperation. To “aid” means “to assist or help the actor” while to “abet” includes
“encouraging, instigating, promoting, or procuring the crime to be committed.”59 Imagine if physician-assisted death were still a crime in Canada. John wants to end his life but cannot do so without assistance. He asks Fred for assistance. Fred refuses, but he knows that Charles is willing. Fred arranges for John to see Charles. Has Fred aided or abetted the crime of assisted suicide? If so, this may help the analysis of the scenario where a doctor conscientiously refuses to refer a patient who wants to end his life to a doctor who is willing to perform assisted death.
Immigration law deals with personal responsibility for the acts of others when it assesses whether persons are ineligible for refugee status due to complicity in crimes against humanity. In
Ezokola, the Supreme Court of Canada adopted the standard of asking whether the person
“voluntarily made a significant and knowing contribution” to the “crime or criminal purpose” of the principal.60 The Court noted some factors that help to determine whether the contribution was significant and knowing, but held that the result will “depend on the facts of each case”61 with the help of a “full contextual analysis”.62 The same goes for a claim of freedom of conscience. Assessing material cooperation will depend greatly on the facts of a case.
The law also attaches personal responsibility for unintended consequences when it determines causation in a negligence claim. While causation is generally determined by asking if the plaintiff would have suffered injury “but for” the negligent act of the defendant, causation may be exceptionally established “by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury” in certain scenarios where there are two or more
59 R v Greyeyes, [1997] 2 SCR 825 at 836-837, 148 DLR (4th) 634. 60 Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 at para 8, [2013] 2 SCR 678 [Ezokola]. 61 Ibid at para 91. 62 Ibid at para 100. See also paras 92-99. 166 tortfeasors.63 The concept of material contribution in negligence law may be helpful where the claimant facilitates rather than commits the perceived immoral activity and the case involves multiple parties that, to varying degrees, contribute to the occurrence of the activity. Refusals to provide services for the wedding celebrations of same-sex couples come to mind.
With these principles from criminal, immigration, and negligence law on responsibility for the acts of others in hand, what conduct by claimants that wish to rely on freedom of conscience amounts to material cooperation with activity that they perceive to be immoral?
While this question will be explored in the case studies on healthcare and marriage, some commentary is useful here. I submit that where the claimant knowingly does something that meaningfully enables the commission of the perceived immoral act, she materially cooperates with the perceived immoral act. Where the claimant clears the path for the act, she has materially cooperated with the act. Consider the doctor who judges abortion to be immoral but refers a patient who wants an abortion to a doctor who will perform the procedure. It seems reasonable to say that the objecting doctor materially cooperates with the abortion given that his referral paves the way for the patient to obtain an abortion.
Regarding same-sex marriage, Kent Greenawalt argues that the baker who refuses to make a wedding cake for a same-sex couple does not participate in the object of his moral opposition. However, Greenawalt concludes that wedding photographers should receive a conscience-based exemption under legislation that prohibits discrimination on certain grounds in the provision of services to the public.64 Aside from the person who officiates the marriage, he
63 Clements v Clements, 2012 SCC 32 at para 46, [2012] 2 SCR 181. 64 The difficulty with such a claim in Canada is that neither the Charter nor any of the human rights codes in Canada prohibit discrimination on the basis of “conscience”. Mary Anne Waldron argues, however, that conscience is likely an unenumerated ground under the equality guarantee in the Charter, meaning that its current absence in the human rights codes is vulnerable to constitutional challenge. See Waldron, supra note 50 at 197. 167 suggests that the “main photographer, taking hundreds of photographs, many of which will last a lifetime, should count as participation, but simply baking a cake for a wedding celebration should not.”65 Greenawalt draws the line for establishing a limit on freedom of conscience at
“genuine participation” – a standard that does not appear to differ in any substantial respect from the concept of material cooperation.66 I take up the issue of refusals to provide services for the wedding celebrations of same-sex couples in Chapter 6.
How else might a court determine whether the state has interfered with freedom of conscience in a manner that is more than trivial or insubstantial? One alternative to adopting material cooperation as the threshold for a limit on freedom of conscience is to not adopt a particular concept to serve as the threshold for a limit on this human right. Instead, courts would apply the trivial or insubstantial standard to each case and, over time, the criteria for applying this standard would take shape. This approach appears to reflect how the religious freedom jurisprudence in Canada has developed. There is no fixed principle akin to material cooperation that serves as the threshold for a limitation of that Charter freedom.
For freedom of conscience, this approach is viable. I have, by proposing material cooperation as the threshold for a limit on this freedom, conveyed what I think courts should adopt as the trigger for non-trivial or substantial interference. I endorse material cooperation because it has a particular concern for moral action, which is the sum and substance of conscience. The word “conscience” in s. 2(a) of the Charter should not be considered in a vacuum – it has, as Chapter 2 of this thesis illustrated, a rich and long history within the domains
65 Greenawalt, supra note 29 at 316. 66 Ibid. 168 of philosophy, theology, and morality.67 In light of that history, material cooperation is suitable for determining whether the state has, by its action, limited freedom of conscience.
Objective or Subjective Test?
Whose perspective should a court adopt when it assesses whether the state has limited freedom of conscience? Kent Greenawalt suggests that courts should consider what a reasonable person would conclude in the circumstances (a modified objective test). In other words, courts should neither adopt a purely subjective nor objective posture in assessing the interference.
Canadian courts, in religious freedom cases, have adopted what appears to be a purely objective approach for this aspect of a religious freedom claim. The Supreme Court of Canada has held that, “when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed.”68 While the “subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion”, proving a limit of the right “requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom.”69 The matter of whether the state action interferes with the religious practise is investigated objectively, not based on the claimant’s perspective of how the state action interacts with her religious practise.
I endorse the Canadian approach to religious freedom for the purposes of freedom of conscience. First, the claimant must (subjectively) demonstrate a sincerely held moral conviction. Second, she must demonstrate that it has (objectively) been interfered with to a
67 See, for example, Helen Watt, ed, Cooperation, Complicity & Conscience: Problems in Healthcare, Science, Law and Public Policy (London: The Linacre Centre, 2006). 68 SL v Commission scolaire des Chênes, 2012 SCC 7 at para 24, [2012] 1 SCR 235 [SL]. 69 Ibid. On the subjective part of the religious freedom test, see Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551. 169 degree that is more than trivial or insubstantial. Anything other than an objective outlook for the issue of interference will undermine the rationale of the “trivial or insubstantial” standard: to filter out claims that feature indirect or insignificant burdens on the freedom.
This approach does not mean that a claimant who fails to prove that state action interferes with her freedom of conscience is wrong. There may well be an interference, but in the legal analysis the interference does not amount to a limit on that Charter right. The case of Dr.
Jerilynn Prior, who conscientiously refused to pay income tax on account of her faith-based pacifism, comes to mind.70 No one disputed the sincerity of Dr. Prior’s judgment that her support of state military expenditures through her income tax interfered with her freedom of conscience.
The basis for rejecting her claim was that the legal obligation to pay income tax did not interfere with her freedom to such an extent as to limit it. There was, in short, too remote a connection – objectively speaking – between her income tax and state military expenditures.
Before moving to the issue of justifying limits on freedom of conscience, a potential issue within the limitation analysis is whether the claimant professes a sincerely held moral judgment.
The fact that a claimant disagrees with or even strongly disapproves of X does not ground a claim in freedom of conscience. Not even moral disapproval, standing alone, will suffice to ground a Charter claim under freedom of conscience. A judgment by the claimant that it would be immoral for her to participate in X is required. A marriage commissioner who is a homophobe
– a “person with an extreme and irrational aversion to homosexuality and homosexual people”71
– cannot rely on freedom of conscience to exempt himself from the requirement to solemnize same-sex marriages. There is, in that scenario, no sincerely held conviction of conscience – regarding the definition of marriage, for example – but rather an irrational fear and likely hatred.
70 Prior v Canada, [1989] FCJ No 903, 2 CTC 280 (CA). 71 Oxford Living Dictionaries, “homophobe”, online:
In summary, state action that obliges a person to do something (on pain of legal sanction) that amounts to material cooperation with the commission of the perceived immoral act will be said to limit freedom of conscience. The next section considers when limits on freedom of conscience are justified.
III. Justifying Limits on Freedom of Conscience
This section unpacks three principles that, in my view, perform the heavy lifting in determining whether a limit on freedom of conscience in s. 2(a) is justified under section 1 of the
Charter. These principles are harm, human dignity, and undue hardship.
Harm
An uncontroversial scenario in which it is justified to limit a human right is where its exercise causes harm. As John Stuart Mill put it, “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”72 While the definition of harm can be nebulous,73 the concept of physical harm is accessible. Imagine a person who professes a sincere religious belief that his wife should obey him or else be corporally punished. The crime of assault would limit his religious freedom, but the limit is justified because this exercise of religious freedom harms another person.
Turning to freedom of conscience, Mary Anne Waldron gives the example of a person who decides he must, for reasons of conscience, detonate explosives at Parliament (perhaps because, in his view, the government is irreparably corrupt).74 His moral judgment may be
72 John Stuart Mill, On Liberty and Considerations on Representative Government (Oxford: Basil Blackwell 1946) at 8, cited in Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7 at para 90, [2015] 1 SCR 401. 73 See Lori G Beaman, Defining Harm: Religious Freedom and the Limits of the Law (Vancouver: UBC Press, 2008). 74 Waldron, supra note 50 at 198. 171 sincere and laws that prohibit him from manifesting that judgment may amount to a limit on his freedom of conscience, but state action that prevents him from completing his mission is justified given the harm he would inflict. The harm principle, then, allays some concerns generated by the prospect of breathing life into freedom of conscience. One reason why freedom of conscience has not been advanced in litigation in Canada may be the fear that, once the tap is turned on, a flood of claims grounded in conscience will follow. As mentioned in Chapter 1, some persons who testified before a Special Joint Committee of the House of Commons and the Senate during the drafting stage of the Charter expressed this fear.
I do not expect a flood of conscience claims to follow in the wake of a newfound focus on this Charter freedom. Given the everyday importance of living conscientiously to most persons, the feared deluge of conscience claims has no reason to wait for an increase in scholarly attention to freedom of conscience. The gravity of a crisis of conscience for a person is reason enough to seek legal redress. Another reason to doubt the floodgates concern is the existence of legal principles that address exercises of human rights that cause harm to others. This concern may be more about the quality of claims rather than quantity. There are measures already in place to manage that issue – such as the three principles that, in my view, indicate that a limit on freedom of conscience is justified. I turn now to the second: human dignity.
Human Dignity
Human dignity may also serve to limit the exercise of a human right. Where the exercise of a human right injures human dignity, it is usually justified to deny the exercise. Human dignity can be viewed as a freestanding limiting principle or, alternatively, as a type of harm. 172
Attempts to define human dignity have yielded various understandings. Judges of the
Supreme Court of Canada have described human dignity as “an abstract and subjective notion”75, a concept that is “somewhat elusive”76, and “loaded and value-ridden”.77 Nevertheless, Aharon
Barak, in his comprehensive text on human dignity in constitutional law, argues that there has been success in Canada in identifying the “essence of human dignity”.78 That essence, he says, is
“unrelated to the rank and status of a person” but is rather “inherent in a person and his relations with others.”79 As L’Heureux-Dubé J. wrote in Walsh, human dignity is a concept “comprising fundamental assumptions about what it means to be a human being in a society” and an
“essential aspect of humanity.”80 Human dignity concerns the “humanity of a person.”81 This statement may be nebulous, but achieving precision and certainty on the nature of human dignity is challenging. The same challenge exists in defining “conscience”. Human dignity is violated, I submit, when it can be said that a person has been dehumanized.
Human dignity is classified as a “Charter value” that informs various Charter rights and aids their interpretation.82 Referring to the “free and democratic society” phrase in section 1, the
Supreme Court has held that respect for human dignity is “clearly an essential value in our free and democratic society which must guide the courts in interpreting the Charter.”83 The status of human dignity as a Charter value means that it plays a role in determining when a limit on a
Charter right is justified. In Oakes, the Supreme Court identified the “inherent dignity of the
75 R v Kapp, 2008 SCC 41 at para 22, [2008] 2 SCR 483. 76 Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 at para 106, [2004] 1 SCR 76. 77 Nova Scotia (Attorney General) v Walsh, 2002 SCC 83 at para 81, [2002] 4 SCR 325 [Walsh]. 78 Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge: Cambridge University Press, 2015) at 217. 79 Ibid. 80 Walsh, supra note 77 at para 81. 81 Barak, supra note 78 at 217. 82 R v Mabior, 2012 SCC 47 at paras 44-48, [2012] 2 SCR 584. 83 Blencoe v British Columbia (Human Rights Commission), 2002 SCC 44 at para 77, [2000] 2 SCR 307. 173 human person” as a value animating a free and democratic society.84 Barak is correct that human dignity plays an “important role” throughout the proportionality analysis. First, a law that seeks to promote human dignity will be found to have a legitimate purpose. Second, within the balancing exercise of proportionality, “substantial consideration will be given to the side of the scales upon which human dignity lies.”85 Limits on Charter rights that affirm human dignity are more likely to be justified. That said, human dignity is not the only – or necessarily the most important – Charter value. It is “only one of the values that must be fulfilled, and the Court must balance between it and other values that a given right fulfills.”86 The notion that freedom of conscience safeguards dignity – as was posited in Chapter 3 – suggests that collisions of dignity
(through collisions of Charter rights) may arise from time to time.
Turning to the encounter between the invocation of freedom of conscience and the human dignity of persons affected by these invocations, two questions emerge. Where one person manifests a conviction of conscience – a moral judgment – in a manner that conveys moral disapproval of another person’s lifestyle or identity, does this manifestation injure human dignity? If that manifestation injures human dignity, is it ever permissible?
Canadian jurisprudence has engaged with these questions. In Chamberlain,87 a school board in British Columbia denied the request of a teacher to use three books in his classroom featuring families with same-sex parents. A majority of the Court set aside the board’s decision, concluding that the board could not use the religious views of certain parents concerning the morality of same-sex relationships as a basis for prohibiting the use of books.
84 Oakes, at 136. 85 Barak, supra note 78 at 224. 86 Ibid at 223. 87 Chamberlain v Surrey School District No 36, 2002 SCC 86, [2002] 4 SCR 710 [Chamberlain]. 174
The minority in Chamberlain commented on the relationship between moral disapproval and human dignity (and the majority did not disagree with this part of the reasoning). Writing for the minority, Gonthier J. held that “nothing” in Canadian law “speaks to a constitutionally enforced inability of Canadian citizens to morally disapprove of homosexual behaviour or relationships”; to conclude otherwise would endorse a “feeble notion of pluralism that transforms
‘tolerance’ into mandated approval or acceptance’”.88 He continued by stating that the “inherent dignity of the individual not only survives such moral disapproval, but to insist on the alternative risks treating another person” – the person who expresses the disapproval – in “a manner inconsistent with their human dignity”.89 Gonthier J. did not elaborate on this statement any further than noting the “potential for a collision of dignities.”90
In Kempling, the British Columbia Court of Appeal relied on these statements in
Chamberlain in a case of disciplinary action against a schoolteacher for his public criticism of homosexuality.91 Lowry J.A. held that statements “critical of a person’s way of life or which denounce a particular lifestyle are not in themselves discriminatory” – it is only when these statements “are made in disregard of an individual’s inherent dignity that they become so.”92
That scenario would arise where we judge someone “based not on their actual individual capacities, but on stereotypical characteristics ascribed to them because they are attributed to the group of which the individuals are a member”.93
I agree that it is problematic to conclude that human dignity is injured merely by a person’s moral disapproval of another person’s lifestyle or identity. That conclusion flirts with
88 Ibid at para 132. 89 Ibid. 90 Ibid. 91 Kempling v British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169 [Kempling]. 92 Ibid at para 33. 93 Ibid, citing R v M(C) (1995), 23 OR (3d) 629 at 633, 41 CR (4th) 134 (CA). 175 the idea of a legally protected right to not be offended – a “feeble notion” of pluralism.94 The
Supreme Court has held that tolerance of divergent (and even offensive) viewpoints is, for better or worse, “the hallmark of a democratic society.”95 Professing that a person is living immorally is one thing. It is entirely different to act on that moral judgment in a manner that causes harm or injures human dignity – for example, with physical violence or by verbally denigrating a person as less worthy of respect on account of a personal characteristic.
In order to identify the point at which moral disapproval injures human dignity, it may help to consider the link between the moral conviction and the nature of the human interaction.
Where a person’s refusal to engage with another person does not meaningfully manifest a moral conviction, I submit it is more likely that dignity of the person refused will be injured. When a restaurant owner refuses to serve food to a same-sex couple, there is no meaningful connection between the owner’s refusal and living in alignment with the substance of the moral conviction that marriage is uniquely the spousal union of one man and one woman. As Thomas Berg puts it,
“assisting with a marriage ceremony” or “directly facilitating a marriage” has a significance that
“general commercial services, like serving burgers and driving taxis, do not.”96
A different conclusion may follow where there is a connection between the refusal and meaningfully manifesting the moral conviction. In the case of an official that solemnizes civil marriages, refusing to solemnize a same-sex marriage – if the official judges such a union to not be marital – is more intelligible insofar as she directly engages with marriage, the substance of her moral conviction. That the official accepted a job to perform civil marriage (as it is defined by the state) weighs against accommodation of this moral conviction. I take up this case in
94 Chamberlain, supra note 87 at para 132. 95 Trinity Western University v College of Teachers, 2001 SCC 31 at para 36, [2001] 1 SCR 772. 96 Thomas C Berg, “What Same-Sex-Marriage and Religious-Liberty Claims Have in Common” (2010) 5:2 Northwestern JL & Soc Policy 206 at 233. 176
Chapter 6. The point being made here is that an exercise of freedom of conscience may be more likely to injure human dignity if the exercise does not have a rational connection to honouring the moral conviction.
The target of the moral disapproval is also relevant to the question of whether human dignity is injured. In the context of a conscientious refusal, the target may not be a person but rather the perceived immoral activity. Consider the baker who refuses to bake a cake for a same- sex wedding. If the baker’s refusal is a genuine manifestation of her desire to not collaborate with what she concludes to be an immoral distortion of marriage, the baker should also refuse to bake the cake if a friend of the betrothed couple were to request it on the couple’s behalf. If the baker were to refuse in both scenarios, this seems to push against the argument that the refusal targets persons (and their human dignity) rather than perceived immoral activity.
Invocations of freedom of conscience raise the spectre of injuring the dignity of persons whom the invocations adversely affect. At the same time, the person who invokes freedom of conscience may also be vulnerable to this sort of injury. In Chapter 3, I explained how a person may injure her dignity if she does something that she deems immoral. This risk is created by the interrelationship between conscience, integrity, and identity. A person who violates her conscience commits a profound act of self-betrayal by performing an act that, for her, is morally unthinkable. As Ronald Dworkin puts it, the state that unjustifiably prohibits its citizens from manifesting their core commitments “profoundly insults their dignity and their self-respect.”97
With this in mind, it is easier to understand what Gonthier J. meant in Chamberlain when he stated that to insist that moral disapproval of another person injures her human dignity “risks treating” the person who disapproves “in a manner inconsistent” with his human dignity.98
97 Ronald Dworkin, Religion Without God (Cambridge: Harvard University Press, 2013) at 113. 98 Chamberlain, supra note 87 at para 132. 177
Some will say that to express moral disapproval of a person’s conduct is to condemn that person and to damage her human dignity. This issue arose in Whatcott, a case in which Bill
Whatcott sought to overturn the finding that he had violated Saskatchewan’s human rights legislation for distributing flyers that denounced homosexual behaviour as immoral and dangerous.99 In concluding that the relevant provisions of the legislation justifiably limited
Whatcott’s freedom of expression and freedom of religion under the Charter, the Supreme Court held that when sexual conduct “that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself.”100
There are two important distinctions between Whatcott (a hate speech case) and the scenario in which a person conscientiously refuses to provide a service to another person. First, the state did not require Mr. Whatcott to commit a positive act. He chose to distribute the flyers.
In a case of a conscientious refusal to provide a service to a member of the public, the service provider is often forced to choose between violating his conscience or refusing to provide the service in violation of laws that bar certain forms of discrimination in the provision of services to the public. The second distinction from Whatcott is that conscientious refusals can – and should
– be conveyed in a civil and polite (as opposed to a brash and hateful) manner.
Along with harm and human dignity, there is a final principle that serves to limit freedom of conscience. Even where an exercise of this freedom neither harms nor injures human dignity, the exercise may nevertheless be validly limited where it would cause others undue hardship.
99 Whatcott, supra note 37. 100 Ibid at para 124. 178
Undue Hardship
If citizens should be free to manifest their moral convictions as long as they do not cause harm or injure human dignity, what should be made of the fact that conscientious refusals often concern requests for lawful services? This is the “lawfulness rebuttal” to which I referred earlier in this chapter. I noted that this rebuttal is not the beginning and end of the analysis, but it is a relevant factor. Many of the services that inspire conscientious refusals are lawful by virtue of democratic processes. Section 1 of the Charter mentions a “free and democratic society” as the ultimate standard against which limits on Charter rights are to be justified.101 Whether it is abortion, physician-assisted death, or same-sex marriage, these matters have been legalized legislatively, judicially, or through some combination of the two.
The principle of undue hardship might help jurists to strike a balance between the lawfulness rebuttal and respect for freedom of conscience (or other Charter rights). Exercises of this freedom that neither cause harm nor injure human dignity should be allowed unless the exercise would cause undue hardship for others. If, for example, a conscientious refusal to provide a lawful service to someone would require a customer to travel an unreasonable distance to obtain the service elsewhere, the service provider arguably must provide the service or not work in that position (in that location). If the conscientious refusal means that the customer must cross the street to obtain the service elsewhere, undue hardship is likely not established and so the conscientious refusal should arguably be allowed.
Drawing the line between due and undue hardship can be difficult. Setting aside concerns related to dignity and harm for the moment (concerns that will be addressed in the case study on healthcare), take the example of a woman who wants to buy contraception but the only
101 Charter, supra note 1 at s 1 (emphasis added). 179 pharmacist in her town conscientiously refuses to sell it. When does the distance she must travel to buy contraception become undue hardship? Five kilometres? Ten? Twenty? This line-drawing difficulty may tempt us to abandon undue hardship and adopt an all-or-nothing approach: either allow the refusal always (because of the value of freedom of conscience) or deny the refusal always (because of the lawfulness of contraception and interests such as reproductive autonomy).
I disagree with the idea of abandoning undue hardship because of the difficulties associated with applying this principle. Canadian law is replete with principles that can be difficult to apply. It is not as if undue hardship is an unknown commodity in Canadian law. The principle is already applied in the context of an employer’s duty to accommodate – to the point of undue hardship – aspects of an employee’s identity such as sex, religion, and disability.102
What, then, should be done about the difficult cases? How do we draw the line in the case of the pharmacist? The facts of each case will be different – and these differences may influence the outcome. For the woman who wants to buy contraception in the town where she lives, driving one hour to another pharmacy may constitute undue hardship. But if she regularly visits the town in which that pharmacy is located for work or other reasons, is it still undue hardship?
This factor may or may not make a difference. The point is this: what is and is not undue hardship cannot be answered in the abstract. Workable criteria will be developed over time, with litigation and scholarship. That said, a few general guidelines can be ventured at this juncture.
First and foremost, the threshold of undue hardship implies that some (due) hardship is permissible where freedom of conscience is invoked and where that invocation does not cause harm or injure human dignity. In other words, the citizen affected by an act of conscience may experience some inconvenience. Living in a plural society cuts both ways in the sense that
102 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, 176 DLR (4th) 1. 180 citizens may occasionally experience additional burdens that enable fellow citizens to live in accordance with their human rights. These are rights that the inconvenienced citizen also enjoys.
If a woman wishes to buy contraception and a pharmacist conscientiously refuses, it is arguably unreasonable for the woman – bearing in mind the human right standing behind that refusal – to sue when another pharmacist, located around the corner, sells it. While the woman may be understandably upset, perhaps deeply so, this scenario may represent part of the cost of living in a diverse society in which potentially conflicting human rights (due to that diversity) are legally guaranteed. This cost is, in some bills of rights, stated up front. The Quebec Charter of Human
Rights and Freedoms provides that, in the exercise of the rights and freedoms that this instrument guarantees, “a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens” of Quebec – and, to that end, “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.”103 Proper regard for the well-being of fellow citizens encompasses the exercise of their fundamental rights. I submit that this regard applies even where the exercise of these rights will create some inconvenience for others.
Inculcating the notion that these experiences are features of such a society may decrease the disgruntlement when these experiences occur. If I step into the shoes of the pharmacist and recognize that requiring him (on pain of legal sanction) to sell me contraception would for him be an occasion of self-betrayal and may cause him harm, I will be more understanding of why it is reasonable for me to buy contraception from the nearby pharmacist instead – even though I may profoundly disagree with the substance of the refusing pharmacist’s moral judgment.
The principle of undue hardship may also dictate that freedom of conscience does not entitle the claimant to accommodation where the exercise of that freedom relates to the essence
103 Charter of Human Rights and Freedoms, CQLR c C-12, s 9.1. 181 of a profession or business. If a member of the armed forces invokes freedom of conscience when war is declared to avoid being sent into battle, it seems absurd to honour this invocation of the freedom given the nature of the claimant’s profession. There will be costs to maintaining a conviction of conscience. With pacifism, the cost may be that a military career is not an option.
The same-sex couple that wishes to stay at a bed and breakfast or motel owned by a person who believes that their sexual relationship is immoral may be another example. The essence of this business, which the owner voluntarily opened and operates, is to provide shelter.
Kent Greenawalt notes that the owner may also oppose sexual intimacy between unmarried heterosexual couples, yet the owner has likely allowed such couples to book a room (knowingly and unknowingly). Greenawalt argues that the “provision of ordinary services does not typically seem to entail any serious involvement in the practices of those who receive the service”, so the provider of the service should not be entitled, even for reasons of conscience, to refuse.104
The bite of the essence of the profession principle should not be overstated. One could argue that this principle bars a physician from invoking conscience as a basis for refusing to perform or assist with an abortion or assisted death. In other words, the essence of being a healthcare worker is to provide healthcare – thus, physicians cannot refuse to participate in these procedures. I will grapple with this issue in the case study on healthcare, but it strikes me as inappropriate to speak of the essence of a profession where the physician does not object to the practice of medicine in general but only to a small number of procedures and medication that the physician considers to be immoral and to fall outside the definition of healthcare.
The case of the civil marriage commissioner is, in my view, more nuanced. If civil marriage (as defined by the state) and religious marriage (as defined by a religious authority) are
104 Greenawalt, supra note 29 at 315. 182 distinct institutions, it seems difficult to escape the application of the principle concerning the essence of the profession with a marriage commissioner who refuses to solemnize same-sex marriages. The function of a civil marriage commissioner is to perform civil marriages as the state defines them. A right to pick and choose which civil marriages to solemnize seems, at first blush, unreasonable. If, however, marriage is an institution that predates and transcends the state and the creation of civil marriage was not meant to displace that institution but rather to support and protect it, perhaps the claim of the objecting commissioner has some merit. This issue will be given full consideration in the case study on conscientious objection in relation to marriage.
Conclusion
This chapter offered guidance for jurists seeking answers on whether freedom of conscience has been limited and, if so, whether the limit is justified. This guidance flows from the normative perspective that freedom of conscience merits robust protection given what is at stake for a person who finds herself in a crisis of conscience. The Supreme Court of Canada noted in Oakes that the validity of a limit on a Charter right might depend on the nature of the right. I submit that the nature of freedom of conscience is relevant in this regard.
Where state action obliges a person to materially cooperate with an act that the person perceives to be immoral or else face some sort of legal sanction, freedom of conscience is limited. Material cooperation, in my view, occurs where a person does something that meaningfully enables the commission of the perceived immoral act. State interference with freedom of conscience that falls below material cooperation does not limit this Charter freedom.
The finding of a limit of freedom of conscience, as with all other Charter rights, is not the end of the analysis. The next question is whether the limit is justified. I proposed that three principles – harm, human dignity, and undue hardship – can justify a limit on freedom of 183 conscience. Only so much can be said on how these principles would function in an actual case, but this chapter offered some concrete guidance. First, mere moral disapproval of a person’s lifestyle or identity does not injure human dignity. If the opposite were true, the scope of permissible discourse and expression in a plural society would be limited to such a degree that is antithetical to liberal democracy. Second, freedom of conscience can be limited where the claimant invokes the freedom to negate the essence of her profession – for example, a restaurant owner that refuses to serve a same-sex couple. Third, freedom of conscience can be limited where the claimant refuses, for reasons of conscience, to provide a service if the refusal does not contribute to living in alignment with a moral conviction. In my view, the restaurant owner does not meaningfully manifest his judgment that marriage is the spousal union of one man and one woman by refusing to serve a same-sex couple a meal. Fourth, the principle of undue hardship contemplates the allowance of due hardship. Adversity – within limits – is a cost of living in a plural, free, and democratic society in which the law protects human rights and worldviews collide. This adversity enables the exercise of those rights by all citizens. Today I may experience adversity for the benefit of a fellow citizen. Tomorrow, the roles may be reversed.
This chapter – along with the chapters before it – have set the stage for case studies on freedom of conscience in the context of healthcare and in relation to same-sex marriage. With the theoretical groundwork completed, these case studies offer opportunities to test the theory against practice.
184
Chapter 5 – Healthcare Introduction...... 184
I. The Debate on Conscience in Healthcare ...... 186 II. The Charter, Human Rights, and Healthcare ...... 201 III. Referrals...... 211 Conclusion ...... 229
Introduction This chapter considers conscientious objection in healthcare. This practice is unsurprising as the substance of healthcare – life, death, and the human body – often raises moral and ethical issues. Healthcare is the context in which freedom of conscience most often appears today.
Judgments in Canada and elsewhere on the content, rationale, and limits of freedom of conscience will most likely emerge from this context. Claimants are often religious, yet they describe their actions as conscientious objection; a term that reflects freedom of conscience.
I focus on conscientious objection by physicians because it is the subject of ongoing litigation in Canada, but much in this chapter pertains to other healthcare workers. I do not treat conscientious objection by healthcare institutions: a topic that, owing to its distinctive features and reliance on a collective dimension of freedom of conscience, merits independent study. I test my proposals on what freedom of conscience protects, why it is included in bills of rights, and when states can limit it. I rely on scholarship in law, medicine, philosophy, and bioethics along with media reports, case law, legislation, and policy documents from several liberal democracies.
This chapter has three parts. Part I explores the academic debate on conscientious objection in healthcare. Critics emphasize the lawfulness of healthcare services, the rights of patients, a person’s voluntary decision to work in healthcare, the adverse effects of conscientious 185 objection on patients, and the unprofessional nature of this practice. Supporters underline freedom of conscience, the practical impossibility of leaving moral convictions at home, the value of moral integrity, the virtue of a morally diverse healthcare workforce for a morally diverse society, and that objectors consider certain services as antithetical to healthcare.
Part II considers the clash of rights between patients and healthcare workers that conscientious objection is often said to create. In Canada, the Charter neither confers a right to healthcare in general nor to specific procedures that the state has chosen to deliver as healthcare.
The idea that refusals to provide these procedures based on moral convictions on human life amount to discrimination under provincial human rights codes is, in my view, incorrect.
Part III studies referrals. When a physician conscientiously refuses to perform a procedure or prescribe a drug, must she find a willing physician for the patient? In my view, obligatory referrals limit a physician’s freedom of conscience. They require participation in services that she deems immoral to a degree that would attract criminal liability (as an accomplice) were they crimes. Broadly, this limit is unjustified for two reasons. First, it stifles moral freedom in a sector imbued with moral considerations. Second, there are reasonable alternatives that do less harm to freedom of conscience without sacrificing access to healthcare.
Conscientious objection in healthcare is a sensitive issue. This case study raises delicate and significant competing interests of physicians and patients. The Supreme Court of Canada has called for their reconciliation.1 After considering the perspectives of both sides, I submit that denying conscientious refusals to refer would fail to answer that call.
1 Carter v Canada (Attorney General), 2015 SCC 5 at para 132, [2015] 1 SCR 331 [Carter]. 186
I. The Debate on Conscience in Healthcare
In medical-legal scholarship, conscientious objection in healthcare has been defined as
“making known one’s objection to complying with a specific standard or practice” for moral or ethical reasons.2 Mark Wicclair, a leading scholar on the subject, defines this practice as the scenario where healthcare workers “refuse to provide legal and professionally accepted goods or services that fall within the scope of their professional competence” and “justify their refusal by claiming that it is an act of conscience or it is conscience-based.”3
Today, healthcare is a hotspot for conscientious objection. The debate in the United
States on whether employers may conscientiously withhold insurance coverage for birth control to employees is an example.4 In Canada, the arrival of physician-assisted death renewed debate on the propriety of conscientious objection. Given the “morally controversial nature of developing medical technologies and the centrality of health care decisions to virtually all modern conceptions of individual autonomy”, the status of healthcare as the “primary battleground in today’s conscience wars” is unsurprising.5 The debate implicates procedures and drugs such as abortion, contraception, assisted death, and assisted reproduction, though the number of procedures and drugs that attract conscientious objection is small given the vast number of services that fall under the category of lawful healthcare in most states.6
2 Christina Lamb, “Conscientious Objection: Understanding the Right of Conscience in Health and Healthcare Practice” (2016) 22:1 New Bioethics 33 at 37. 3 Mark Wicclair, Conscientious Objection in Health Care: An Ethical Analysis (Cambridge: Cambridge University Press, 2011) at 1. 4 Sarah N Lynch & Caroline Humer, “Trump undermines U.S. birth control coverage requirement”, Reuters (6 October 2017), online:
Studies in the fields of law, medicine, philosophy, and bioethics are the major sites of the academic debate on conscientious objection in healthcare. It is a “phenomenon that is appreciated, discarded and wrestled over regarding its relevance and whether need or room should be made for it in light of varying ethical perspectives over what constitutes ethical health care provision”.7 The two sides of the debate “contend between patient and provider rights, as well as preserving the professional autonomy of health care professionals in keeping with their cohesive sense of moral integrity.”8 I turn now to the arguments on each side. Some of the arguments are echoed and amplified in subsequent sections of this chapter that treat the collision of rights that is said to be created by conscientious objection (Part II) and whether obligatory healthcare referrals justifiably limit the freedom of conscience of physicians (Part III).
Arguments Against Conscience in Healthcare
There has been a recent surge in scholarship that, to varying degrees of intensity, is critical of conscientious objection in healthcare.9 Some scholars call for its wholesale rejection.
7 Lamb, supra note 2 at 38. 8 Ibid. 9 Udo Schuklenk, “Conscientious Objection in Medicine: Private Ideological Convictions Must Not Supercede Public Service Obligations” (2015) 29:5 Bioethics ii-iii. Julian Savulescu & Udo Schuklenk, “Doctors Have No Right to Refuse Medical Assistance in Dying, Abortion or Contraception” (2017) 31:3 Bioethics 162-170. Ronit Y Stahl & Ezekiel J Emanuel, “Physicians, Not Conscripts – Conscientious Objection in Health Care” (2017) 376:14 New Eng J Med 1380-1385. Christian Fiala & Joyce H Arthur, “There is no defence for ‘Conscientious objection’ in reproductive health” (2017) 216 European J of Obstetrics & Gynecology and Reproductive Biology 254-258. Anna Heino et al, “Conscientious objection and induced abortion in Europe” (2013) 13 European J Contraception & Reproductive Health Care 231-233. Jonathan Montgomery, “Conscientious Objection: Personal and Professional Ethics in the Public Square” (2015) 23:2 Med L Rev 200-220. Christian Fiala & Joyce H Arthur, “‘Dishonourable Disobedience’ – Why refusal to treat in reproductive healthcare is not conscientious objection” (2014) 1 Woman – Psychosomatic Gynaecology & Obstetrics 12-23. Johannes Bitzer, “Conscientious objection – to be or not to be” (2016) 21:3 European J Contraception & Reproductive Health Care 195-197. Wendy Chavkin, Laurel Swerdlow & Jocelyn Fifield, “Regulation of Conscientious Objection to Abortion” (2017) 19:1 Health & Hum Rts 55-68. Christian Fiala et al, “Yes we can! Successful examples of disallowing ‘conscientious objection’ in reproductive healthcare” (2016) 21:3 European J Contraception & Reproductive Health Care 201-206. 188
This is the minority view at present, but it seems to be gaining traction. Most scholars, in keeping with the prevailing approach of policymakers across liberal democracies, accept that healthcare workers may refuse to perform procedures on account of conscience as long as they somehow assist the patient afterwards. There is virtually no support in this scholarship for the position that a healthcare worker that conscientiously objects may simply show the patient the door.
The arguments against conscientious objection in healthcare attempt to justify either its complete prohibition or something short of that. The usual form of the latter approach (at least in relation to physicians) is to oblige the objecting physician to refer the patient to a willing physician. Critics of conscientious objection often argue, more or less explicitly, that it engages the three principles that I identified in Chapter 4 as capable of justifying limitations on freedom of conscience: harm, dignity, and undue hardship. Conscientious objection is said to prolong the suffering of patients, injure their dignity by depriving them of the ability to make fundamental life decisions, and cause undue hardship by requiring them to find a willing healthcare worker or institution to provide a lawful service. For the remainder of this section, I unpack these criticisms of conscientious objection in healthcare.
According to detractors, recourse to conscience by healthcare workers obstructs access to lawful procedures and drugs. This point is often combined with the idea that patients have a right to receive these procedures and drugs – a right that, at times, seems to hinge on their lawfulness.10 That healthcare workers often enjoy a monopoly in the delivery of healthcare is also underlined. Physicians are portrayed as “first and foremost providers of healthcare services.”11 If the state permits X as healthcare, all competent physicians must provide X.
10 At times, critics of conscientious objection argue that these procedures and drug are guaranteed by a constitutional right. Part II of this chapter engages with this argument. 11 Schuklenk (2015) at iii. See also Julian Savulescu, “Conscientious Objection in Medicine” (2006) 332:7536 Brit Med J 294-297. 189
Patients are “entitled to receive uniform service delivery from healthcare professionals” without being “subjected to today’s conscientious objection lottery.”12 Healthcare workers “must put patients’ interest ahead of their own integrity” and ensure that “legal, beneficial, desired services are provided, if not by them, then by others.”13 If that requirement “leads to feelings of guilty remorse or them dropping out of the profession, so be it.”14 At times the view that conscientious objectors commit discrimination accompanies arguments on the lawfulness of services and the rights of patients. Conscientious objection to performing abortions, for example, is said to discriminate against women on the basis of sex.15 I explore this argument in depth in Part II.
Conscientious objection by physicians – indeed any conduct by physicians – is subject to the professional standards and codes of ethics that govern the medical profession. These standards and codes arose largely due to the abandonment of the Hippocratic Oath – the traditional code of ethics for physicians – starting in the 1960s.16 These standards and codes are usually created by the bodies that the state authorizes to regulate the medical profession. In
Canada, these bodies are often called colleges of physicians: each province has one. While the content of these standards and codes changes periodically, the state authorizes the bodies charged with the governance of the profession to make those changes. Restrictive policies on conscientious objection are said to be justified or even required by the statutory duty that is often imposed on these bodies to regulate the healthcare profession that is under their purview in the
12 Ibid at ii. 13 Savulescu & Schuklenk, supra note 9 at 164. 14 Ibid. 15 Fiala & Arthur (2017), supra note 9. The discrimination argument against conscience in healthcare is accepted by the Ontario Human Rights Commission: see Ontario Human Rights Commission, OHRC submission regarding College of Physicians and Surgeons policy review: Physicians and the Ontario Human Rights Code (Toronto: Ontario Human Rights Commission, 1 August 2014), online:
Healthcare workers voluntarily joined their profession – often with full knowledge of what procedures and drugs are lawful. The authors of a 2016 article in the New England Journal of Medicine call for prohibiting conscientious objection in healthcare on this basis. Physicians freely enter the profession, so they must “provide, perform, and refer patients for interventions according to the standards of the profession.”18 The authors distinguish conscientious objection to conscripted military service from conscientious objection in healthcare. The physician voluntarily joins the medical profession; the person resisting conscription is forced to bear arms.
Given that distinction, physicians must offer all standard and lawful practices within their clinical competence.19 If they cannot do so on account of conscience, they must violate their conscience, resign, or not join the profession in the first place.
Critics of conscientious objection also argue that it imposes the healthcare worker’s personal beliefs and values on the patient. These beliefs and values “ought not to govern delivery of health care at the bedside.”20 Why should patients be obstructed in receiving a lawful service because of a physician’s conscience? In recent cases of Canadian physicians who conscientiously refused to prescribe contraception, criticism “seemed to be focused not so much on the important question of whether access to medical services was compromised, or patients’ dignity
17 Fiala & Arthur (2014), supra note 9. 18 Stahl & Emanuel, supra note 9 at 1380. 19 This argument has less force where, as in the case of physician-assisted death in Canada, a procedure that was long illegal – a crime – becomes lawful. The person who joined the profession before decriminalization did not sign up for that procedure. In that case, arguments concerning the lawfulness of procedures and the content of professional standards and codes of ethics do the heavy lifting against conscientious objection. 20 Savulescu & Schuklenk, supra note 9 at 170. 191 compromised, but on the very idea that religious or conscientious beliefs would play a role in the actions of members of a public profession.”21 In a poll about conscientious refusals to prescribe contraception, 74 percent of respondents opined that doctors should leave their beliefs at home.22
At times, critics of conscientious objection go beyond the notion that this practice imposes personal values and beliefs and instead target the substance of these values and beliefs.
When scholars describe the beliefs of objecting healthcare workers as “idiosyncratic moral convictions” and services such as contraception as a “social good” and “one of the greatest and most valuable of human achievements”, the implication is that the contrary view (held by the objector) is irrational and even harmful.23 When scholars label the beliefs of objecting healthcare workers as “arbitrary”24 or “personal and non-verifiable”,25 the suggestion is that these beliefs cannot amount to reasoned or defensible moral convictions.
Conscientious objection often occurs in respect of procedures and drugs that affect patients in vulnerable personal and socioeconomic situations and that engage fundamental life decisions. Abortion, contraception, and assisted death are examples. The argument is that, in these situations, the patient’s wishes should be paramount. The decision-making process over whether to have an abortion, for example, “may be incredibly powerful and heart-wrenching moments for women.”26 This is especially the case with women in precarious situations, such as women who become pregnant as teenagers or due to sexual assault. Daphne Gilbert argues, on
21 Bruce Ryder, “Physicians' Rights to Conscientious Objection” in Benjamin L Berger & Richard Moon, eds, Religion and the Exercise of Public Authority (Oxford: Hart Publishing, 2016) 127 at 129. 22 Ibid, citing Manisha Krishnan, “Calgary doctor refuses to prescribe birth control over moral beliefs”, Calgary Herald (27 June 2014), online:
This argument is at times combined with the view that the Charter confers a right to procedures such as abortion and assisted death, and that the balancing of these rights against freedom of conscience should favour patients. Gilbert, alluding to sections 7 and 15 of the Charter, argues that it is “evident that a woman’s right to bodily integrity and the right to non-discriminatory health care exceed a physician’s right to have his or her values define the care they will deliver within taxpayer funded employment.”29 I consider the question of colliding rights in Part II.
The philosophical and theoretical perspectives that animate the arguments against conscientious objection include legalism, what could be called “rigid secularism”, and materialism. Legalism professes the “ethical attitude that holds moral conduct to be a matter of rule following” – specifically legal rules – and “moral relationships to consist of duties and rights determined by rules.”30 This perspective drives the emphasis on the lawfulness of a procedure as a justification for obliging a physician to perform it. Individual moral obligations flow from democratically adopted norms, not from the dictates of personal conscience – or, at least, the former trumps the latter. This theory professes a faith in the righteousness (and even the morality) of what the state has permitted – that what the law approves is good and true because it is the law. When scholars label the state’s decision to allow procedures such as abortion or euthanasia as a social good or achievement for humanity, that legal faith reveals itself.
27 Ibid. 28 Ibid. 29 Ibid at 98. 30 Judith N Shklar, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1964) at 1-2. See also Mark Tebbit, The Philosophy of Law: An Encyclopedia (New York: Routledge, 2013) at 488-489. 193
For its part, rigid secularism aims to exclude the influence of religion in public life – especially in the context of services that are delivered by the state. This theory surfaces in the rejection of manifesting moral convictions in the provision of healthcare where those convictions stem from religious formation. Jocelyn Maclure and Charles Taylor distinguish this form of secularism (which they call “republican” secularism) from “pluralist-liberal” secularism, where space is made in the public square for manifestations of religious and moral worldviews.31
Finally, materialism (also known as physicalism) professes that all that exists is the material or physical world. There is no supernatural or transcendent dimension and so nothing after death. Materialism is also associated with the belief that suffering is meaningless and should be avoided at all costs.32 This belief animates arguments in favour of assisted death and against conscientious objection to this procedure. The primary justifications for this procedure – to alleviate suffering and secure a dignified death – are imbued with the notions that suffering is meaningless and that compassion demands that a life of incurable suffering be ended if the person so wishes. For proponents of this view, that wish overrides the conviction (held by persons with the expertise to carry it out) that it is immoral to intentionally terminate human life.
If assisted death enables persons to die with dignity, the arguable implication is that remaining alive in certain circumstances is undignified.33
31 See Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience, trans Jane M Todd (Cambridge: Harvard University Press, 2011). 32 Stanford Encyclopedia of Philosophy, “Physicalism” (13 February 2001), online:
Arguments in Support of Conscience in Healthcare
Supporters of conscientious objection in healthcare consider that the arguments against this practice – lawfulness, access, voluntariness, professional obligations, proselytism, autonomy, and vulnerability – fail to account in several ways for the human right of freedom of conscience, the circumstances of healthcare workers, and the nature of healthcare. They argue that although freedom of conscience is not absolute, healthcare – given its substance and service to society – is a context in which ample room should be made for moral and ethical freedom. In light of my overarching claim in this thesis (ie, freedom of conscience merits robust protection),
I tend to agree with the arguments for conscientious objection in healthcare.
The decision of the state to permit or not prohibit a procedure or drug does not bar the exercise of a human right in opposition to it. The challenge is to reconcile, as much as possible, access to the procedure or drug with the exercise of the human right. The Supreme Court of
Canada said as much on assisted death and abortion: access to these procedures must be reconciled with the freedom of conscience of physicians.34 A prohibition on conscientious objection would fall short of reconciliation. There would be no reconciliation of interests in that scenario, but instead the preference of one interest over the other.
There is a point at which a person’s wish to live conscientiously is incompatible with a profession, but the principle concerning the essence of a profession is not fatal to conscientious objection unless the objector is morally opposed to the job title (so to speak). This is the case with the unwilling soldier or executioner: the objector deems these roles immoral. Applying the principle to a doctor who once specialized in a procedure and now conscientiously refuses to perform it is intuitive. It is not so for a family doctor who deals with countless medical issues but
34 Carter, supra note 1 at para 132. 195 refuses to refer for abortions or prescribe contraception. Hence, Michael and Grace Stark argue that, for the principle to capture a physician, it must be shown “that all ‘standardized’ interventions of a particular specialty are essential to the practice of that specialty—that performing elective abortions is essential to being an obstetrician, that performing gender reassignment surgery is essential to being a plastic surgeon, that enabling a patient’s suicide is essential to being a geriatrician—and that to object to performing such interventions is to object not simply to the intervention, but to the practice of that specialty in its entirety.”35
While some might say that the essence of a physician’s role is to provide lawful procedures and medication, the substance of healthcare – the body, life, and death – counsels ample space for moral reflection in this field. The idea of physicians who are uncritically bureaucratic rather than morally sensitive is unsettling given the nature of their work. The principle concerning the essence of the profession should be applied cautiously where the claimant conscientiously refuses to perform X on the basis that it falls outside of the profession or if the claimant believes that X is antithetical to the profession. This is often the case in healthcare. Physicians conscientiously refuse to prescribe contraception or perform abortions because they view these things as not only immoral but also as falling outside the definition of healthcare. Other healthcare workers who refuse to participate in these services, such as nurses and pharmacists, take a similar view. The unwilling soldier or executioner is different: he accepts that combat and executions form part (or all) of the job description, but refuses to participate in these activities because of his conviction that the job description is immoral.
The argument that conscientious objection obstructs care (in a normative sense, as opposed to merely obstructing services that are offered as healthcare) seems to imply that a
35 Michael D Stark & Grace Stark, “Physicians Without Chests: On the Call to End Conscientious Objection in Medicine”, Public Discourse (27 June 2017), online:
“healthcare” against conscientious objection “assumes that the view of the majority, perhaps as expressed in legislation, defines what good care must be.”36 At the very least, the implication is that conscientious refusals to provide lawful healthcare services are unprincipled refusals – an act that is not made in the best interests of the patient or third parties. The existing policy on conscientious objection in Ontario, which describes conscientious objection as an act that “may impede access to care”, may imply that the requested service is appropriate.37 However, most physicians and their governing bodies likely believe that proper care “does not just involve giving the patient what the patient wants.”38 Notably, the policy in Ontario does not describe refusals due to clinical competence as impeding care. A basic motivation for conscientious objection is that the service at issue does not help but harms patients or others. Physicians who conscientiously refuse to end a patient’s life do so because healthcare, in their moral judgment, excludes killing. Healthcare, in their view, seeks to alleviate suffering while preserving life.
Citing a person’s voluntary decision to work in healthcare as a reason to limit conscientious objection assumes that the person can shelve her moral convictions at work.
Common human experience teaches that these convictions are difficult – if not impossible – to leave at home. Chapter 3 suggested a person might divide himself with respect to his moral
36 Roger Trigg, “Conscientious Objection and ‘Effective Referral’” (2017) 26 Cambridge Q Healthcare Ethics 32 at 33. 37 College of Physicians and Surgeons of Ontario, Policy Statement #2-15, “Professional Obligations and Human Rights”, online:
– and it caused a “really divisive experience” for her.39 At times, critics of conscientious objection seem to view healthcare workers as a means to an end – as robotic functionaries that provide lawful services. Whether these services raise moral issues is unimportant. They have received the blessing of the state and the worker has the skills to provide them.
Emphasis on voluntary choice obscures the fact that many view healthcare as more than just a job. Writing about physicians, Christopher Cowley argues that conscientious objection merits respect because this line of work is “not a normal job, and demands so much more from practitioners than merely fulfilling a contract.”40 The practice of medicine has existed since antiquity. The Hippocratic Oath, the classic statement of ethics for physicians, dates to the fourth or fifth century BCE. For many, joining this profession was a response to a calling. To them it is not a job but a vocation. If we “take seriously” that reality, Cowley writes, we “come closer to understanding the motivation of the conscientious objector; they deserve accommodation not out of respect for their integrity, but rather out of respect for their conception of medicine.”41
Conscientious objection safeguards the moral integrity of healthcare workers. Moral integrity may be defined as the “ability for a person to function in a state of moral unity between personal and professional values and responsibilities.”42 Mark Wicclair argues that the “identity
39 Andrea Janus, “Doctor who objects to physician-assisted suicide says role is in 'service of the sanctity of life’”, CBC News (4 April 2017), online:
“only if one acts contrary to one’s identity-conferring commitments.”44 On this view of moral integrity, conscientious objection merits accommodation only if a healthcare worker’s “core or identity-conferring moral convictions” are at stake – convictions that she “consistently acts in accordance” with and which she would violate if accommodation is denied.45
Removing moral reflection from healthcare – and replacing it with moral conformism or declaring certain issues amoral – may adversely affect patient care. Not only do healthcare workers “have an enormous responsibility, the lives and health of their patients in their hands, but the health care setting can be morally challenging and ripe with dilemmas.”46 If healthcare is laden with moral issues, restricting the moral freedom of healthcare workers may be perilous.
The nature of their work suggests that moral “sensitivity and competence” are “important qualities” for them to “do their job well” – not an environment in which they “unquestioningly follow rules” imposed by the state and regulatory bodies without room for moral reflection.47
Accommodating conscientious objection supports pluralism. The liberal democratic state that governs a plural society refrains, to the extent possible, from imposing an orthodox view on morally contested issues – a step that necessarily identifies the heterodox view on these issues.
This duty flows from a principle of state neutrality, especially as to what comprises the good life.
43 Mark Wicclair, “Conscientious Objection in Healthcare and Moral Integrity” (2017) 26 Cambridge Q Healthcare Ethics 7 at 7-8. 44 Ibid at 8. 45 Ibid at 9. 46 Gry Wester, “Conscientious Objection by Health Care Professionals” (2017) 10:7 Philosophy Compass 427 at 429. 47 Ibid. Where patients have access to only one doctor to begin with (as is the case in rural areas) and the doctor does not share the views of the patient on the morality of certain healthcare services, the ability to choose a morally likeminded doctor is non-existent. That said, the patient could – if it were sufficiently important for her – choose to seek medical services elsewhere. The state’s imposition of orthodoxy on the morality of certain healthcare services would still have an adverse impact on that patient. 199
This principle requires the state “to encourage everyone to participate freely in public life regardless of their beliefs”.48 This principle arguably “speaks in favour of accommodating conscientious objection, as it would better respect and protect citizens’ ability to live by their own conceptions of the good – in particular those whose views diverge from the majority.”49 If the state imposes orthodoxy on abortion, for example, this will not just mean that persons who conscientiously disagree cannot become (or remain part of) the medical profession. It means that patients who disagree will lack access to likeminded physicians.50 It also means that patients who endorse the orthodox view may be treated by physicians who reject it but have chosen to remain in the profession, in violation of their conscience, to pay the bills or out of a desire to not abandon a profession that took years of education and toil to join.
For patients, there is value in healthcare workers coming from “a range of backgrounds and viewpoints”.51 Moral diversity in healthcare reflects moral diversity in a given society.
Space for conscientious objection would promote “greater diversity of moral and religious views being represented in our health care institutions” and thereby “help increase patients’ trust” – especially patients from minority groups.52 The high level of trust and confidence that is crucial to the physician-patient relationship seems more likely to be achieved if patients and physicians are on the same moral page. While some accuse objecting physicians of imposing their beliefs, the physician who refuses to take part in abortions does not bar patients from receiving abortions elsewhere. There is a material distinction between a physician who conscientiously refuses to
48 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 75, [2015] 2 SCR 3. 49 Wester, supra note 46 at 430. 50 Whether freedom of association in s. 2(d) of the Charter might make any contributions in this context may merit further study, but that question is beyond the scope of this thesis. 51 Michael Quinlan, “When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales” (2017) 2016:4 BYU L Rev 1237 at 1262. 52 Wester, supra note 46 at 430. 200 perform an abortion and a physician who, after refusing, lectures the patient on the morality of abortion. In any event, requiring unwilling physicians to participate in abortion (or resign) arguably imposes on them the belief that abortion is a social good.
Procedures and drugs that often attract conscientious objection – such as abortion, contraception, and assisted death – undoubtedly involve difficult and often painful decisions. On abortion, Daphne Gilbert is correct to say that the woman’s body, psychological integrity, life, and future are at stake. An unwanted pregnancy is a source of significant upheaval. Gilbert may neglect, however, to consider that physicians who conscientiously refuse to take part in abortions do so because they believe that the body, life, and future of the foetus are at stake – not to mention their own moral and psychological integrity. The stakes are high for women confronted with unwanted pregnancies, and refusals to provide abortions arguably injure their dignity. That said, the stakes are also high for the physician – and even higher for the foetus – if, for the healthcare worker, the refusal is a refusal to kill. Gilbert asserts that the woman’s conscience is more heavily burdened than that of the physician. If killing is the moral issue at hand, however, it is arguably insensitive to assert that the conscience of the person who kills is less burdened than the person who requests the killing.53 An unwanted pregnancy, where it stems from sexual assault, is a tragedy. For healthcare workers that refuse to participate in an abortion in that scenario, however, the tragedy of the sexual assault does not affect the perceived humanity of the foetus. Healthcare workers do not condone sexual assault by making this refusal.
Prior to tackling conscientious objection to healthcare referrals, I will explore the issue of patients’ rights – an issue that is often raised as a reason to restrict conscientious objection. Does
53 In the case of contraception, there is certainly a difference between ending a (potential) human life through abortion and blocking a potential life from being created. That being said, to the extent that contraception is also a matter of life and death, it may be just as insensitive to assert that the conscience of the healthcare worker who prescribes or dispenses contraception is less burdened than the patient who requests it. 201 the Charter or human rights legislation in Canada confer a general right to healthcare or a right to specific healthcare services that are usually implicated by conscientious objection?
II. The Charter, Human Rights, and Healthcare
The debate over conscientious objection in healthcare often includes reference to a collision between the rights of healthcare workers and the rights of patients. The Supreme Court of Canada, in Carter, called for reconciliation of the Charter rights of physicians and patients in respect of assisted death. There is little doubt that, in Canada, s. 2(a) of the Charter is engaged where the state compels healthcare workers to participate in healthcare services that they deem immoral. As for whether the Charter confers a right to healthcare or to specific healthcare services, two Charter rights – sections 7 and 15 – are usually invoked. What follows is a primer on these Charter rights.54
Section 7 of the Charter guarantees “the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The legal test for a claim under s. 7 has two steps: (i) is one or more of the rights protected by s. 7 engaged and (ii) if so, has the right been deprived in accordance with the principles of fundamental justice? The right to life is engaged where state action directly or indirectly imposes death or an increased risk of death. The right to liberty guarantees both physical and psychological liberty. The former is engaged in cases of physical restraint (such as imprisonment) while the latter is engaged where the state prescribes the citizen to act in a certain way concerning fundamental personal decisions. The right to security of the person also has
54 The legal tests for sections 7 and 15 have undergone major evolution and refinement since the Charter was adopted in 1982. This case study cannot provide a comprehensive account of this evolution and refinement. These primers on sections 7 and 15 are drawn from the “Charterpedia”: see Canada, Department of Justice, Charterpedia, online:
Section 15(1) of the Charter declares that every individual “is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In addition to the prohibited grounds of discrimination mentioned in the text of s. 15(1), courts have identified unmentioned grounds that are also protected: citizenship, marital status, sexual orientation, and Aboriginality-residence. Section
15(1) guarantees substantive rather than formal equality. In other words, the type of equality that s. 15(1) guarantees “does not necessarily mean identical treatment” given that the “formal ‘like treatment’ model of discrimination may in fact produce inequality.”57 The test for s. 15(1) has two steps: (i) does the law create a distinction based on an enumerated or analogous ground and, if so, (ii) is the distinction discriminatory? On step one, the claimant must show that the distinction created by state action withholds a benefit from the claimant that is given to others or
55 Re BC Motor Vehicle Act, [1985] 2 SCR 486 at paras 62-67, 24 DLR (4th) 536. 56 Ibid at paras 29-30. 57 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 165, 56 DLR (4th) 1 [Andrews]. 203 imposes a burden on the claimant that is not imposed on others based on a protected ground. On step two, the claimant must show that the distinction is discriminatory. Certain factors aid that determination: (i) pre-existing disadvantage (stereotyping, prejudice, or vulnerability) experienced by the claimant or a group in which the claimant falls, (ii) linkage between the ground of discrimination at issue and the needs, merits, capacities, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the state action, and (iv) the nature and scope of the interest affected by the state action. The second factor is often key to the analysis because it tackles the issue of stereotyping – a hallmark of “substantive discrimination”.
How do sections 7 and 15 of the Charter relate to procedures that are often the subject of conscientious objection in healthcare, such as abortion and assisted death? In Canada, obtaining or performing an abortion outside of approved hospitals and without following certain administrative steps was, for a long time, a crime. As for assisted suicide, it was a crime in all cases. In 1988, the Supreme Court of Canada struck down the crime of abortion for violating section 7 of the Charter in respect of women.58 The convoluted nature of the administrative steps to obtain an abortion as well as their inconsistent application by health authorities contributed to this conclusion – along with the significant adverse impact of these circumstances on women who wanted to terminate their pregnancies. In 2015, the Court struck down the crime of assisted suicide for consenting adults in certain medical circumstances, also on the basis of section 7.59 In these decisions, the Court did not locate a freestanding Charter right to abortion or assisted death. There is a distinction between the Charter precluding the state from criminalizing X –
58 R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385 [Morgentaler]. The Court ruled, 5-2, that the crime of abortion violated section 7 of the Charter. Broadly stated, four of the five majority judges (Dickson CJ, Lamer J, Beetz J, and Estey J) found that the crime violated the “security of the person” in section 7. The remaining majority judge (Wilson J) found that the crime not only violated the “security of the person” but also “liberty” in section 7. 59 Carter, supra note 1. 204 such as assisted death, in certain circumstances – and the Charter obliging the state to deliver X on demand or at all. The Court’s decision on abortion, “profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue.”60 Nor did the Court find that governments in Canada must, on account of the Charter, provide assisted death or abortion through the healthcare system or any other administrative scheme. Section 7 does not place a “positive obligation on the state to ensure that each person enjoys life, liberty or security of the person.”61 Section 7 restricts “the state’s ability to deprive people of these” interests.62 While the Court has noted that section 7 may one day “be interpreted to include positive obligations”, that day has not yet come.63 In other words, the potential for courts to conclude that section 7 guarantees specific healthcare services provided through the public healthcare system in Canada – and even the entire system – cannot be excluded.
As for section 15 of the Charter, earlier I noted that conscientious objection in healthcare is at times labeled as discriminatory. It is important to distinguish between a claim made under s.
15 and a claim made under anti-discrimination provisions in human rights legislation. The s. 15 claim can only be made against state actors, while the human rights claim can be made against non-state actors. The upshot is that a patient who alleges discrimination in healthcare cannot invoke s. 15 against individual physicians, as they are not state actors.64 The patient could claim, however, that the objecting physician discriminated against her in violation of a provincial human rights code. I will concentrate on the discrimination claim against individual physicians
60 Shelley AM Gavigan, “Morgentaler and Beyond: The Legal Regulation of Abortion” in Janine Brodie, Shelley AM Gavigan & Jane Jenson, eds, The Politics of Abortion: Representations of Women in Canada (Oxford: Oxford University Press, 1992) 118 at 118. 61 Gosselin v Quebec (Attorney General), 2002 SCC 84 at para 81, [2002] 4 SCR 429. 62 Ibid. 63 Ibid at para 82. 64 However, the patient could advance a section 15 claim against the body that is authorized by the state to regulate physicians, as it is a state actor. The patient could argue that a policy created by that body which allows conscientious refusals to perform or refer for abortions unjustifiably limits the equality guarantee in section 15. 205 under human rights codes given the focus of this case study, but I note that there is a basic unity in the principles that animate s. 15 and anti-discrimination provisions in human rights codes.65
In Canada, the test for discrimination under provincial human rights codes may be articulated in two steps.66 The first is a discriminatory act, such as denying a service or benefit to a person or group or differential treatment of that person or group in providing the service or benefit. The second is a link between the discriminatory act and a statutorily prohibited ground of discrimination, such as religion or sex. Among the forms of discrimination, that known as
“indirect discrimination” is the most likely to be raised in respect of refusals to provide abortion or assisted death. Direct discrimination would occur, for example, if an employer provides benefits to all employees except pregnant women.67 Such is not the case with refusals to provide abortion: here, the physician provides the benefit in question – abortion – to nobody.
Indirect discrimination occurs where “otherwise neutral policies” have an “adverse effect on certain groups”.68 A doctor’s decision to not provide abortion is, on its face, neutral. The doctor treats everyone the same: he provides abortion to nobody. Indirect discrimination responds to the reality that treating everyone the same may have discriminatory effects on some persons or groups – in the case of abortion, women. A leading case on this form of discrimination concerned a fitness test for firefighters that, while seemingly neutral, made it practically impossible for women to become firefighters – while men routinely passed the test.69
65 Andrews, supra note 57 at 175-176. 66 Moore v British Columbia (Education), 2012 SCC 61 at para 33, [2012] 3 SCR 360 [Moore]. The human rights codes of each province has its particular wording, but the test for discrimination in employment, housing, and the provision of services to the public is largely the same in all cases. While the test is usually described in the case law as having three steps, the analysis here assumes the satisfaction of the step which requires proof that the claimant possesses a characteristic that protected from discrimination under the human rights code (such as sex or disability). 67 Brooks v Canada Safeway Ltd, [1989] 1 SCR 1219, 59 DLR (4th) 321 [Brooks]. 68 Stewart v Elk Valley Coal Corp, 2017 SCC 30 at para 24, [2017] 1 SCR 591 [Stewart]. 69 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, 176 DLR (4th) 1. 206
In the case of refusals to participate in abortions, women benefit from the prohibited ground of sex in human rights codes and being refused abortions has an adverse impact on them.
The key question, for the matter of indirect discrimination, is whether their sex is “a factor in the adverse impact” that they experience.70 The prohibited ground of discrimination need not be the sole or primary factor that led to the adverse impact. The presence of a “causal” relationship between the adverse impact and the prohibited ground is also not required.71 Requiring causality would distract from the “discriminatory effects of conduct” and instead focus on the “existence of an intention to discriminate or of direct causes”.72 The claimant must only show that the prohibited ground of discrimination was a “factor” in the decision that led to the adverse impact
– in other words, that there is a “connection” between the ground and the decision.73
A woman who is refused an abortion by a physician would likely establish that her sex was a factor in the refusal. At the very least, such a conclusion by a human rights tribunal would likely be considered reasonable by a reviewing court. There is a connection between a woman’s sex and the refusal to provide an abortion, as the characteristic which gives rise to the refusal – her pregnancy – is unique to women. In other words, this sort of healthcare refusal is not experienced by men and therefore the adverse impact of the refusal is shouldered entirely by women. The Supreme Court of Canada has held that discrimination on the basis of pregnancy constitutes discrimination on the basis of sex.74 Certain human rights codes in Canada have codified this principle.75 While a conscientious refusal to participate in abortion may ultimately
70 Moore, supra note 66 at para 33. 71 Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39 at para 49, [2015] 2 SCR 789. 72 Ibid. 73 Stewart, supra note 68 at paras 45-46. 74 Brooks, supra note 67 at 1241-1250. 75 Human Rights Code, RSO 1990, c H19, s 10(2) [Ontario Human Rights Code]. 207 not amount to discrimination in the final analysis, the foregoing suggests that a woman would prove prima facie discrimination on the basis of sex if she is refused an abortion. In that case, the physician who is alleged to have discriminated against her is given the opportunity to rebut the allegation. The rebuttal will succeed if there is a credible non-discriminatory explanation for the refusal76 or if a statutory defence to discrimination applies.77
In the case of a physician who refuses to participate in abortions, I submit that a finding of prima facie discrimination on the basis of sex is rebuttable because of a credible non- discriminatory explanation for the refusal.78 The physician refuses to participate in abortion for a reason that has no connection to the patient’s sex: the foetus is, in the physician’s view, a human being and it is immoral to kill human beings. While refusals to provide abortions acutely affect women, this does not dictate that these refusals are inherently discriminatory. The moral calculus regarding the foetus is unconcerned with sex. If men could become pregnant, the objecting physician would refuse to perform abortions for men on the same moral calculus.
Conscientious objection to abortion based on the view that the foetus is a human being is
“built on no premises about women, let alone discriminatory premises.”79 The physician is motivated by the dignity that she recognizes in the unborn child and by her view that the unborn are equally human to the born – a moral assessment that takes no notice of the sex of the patient.
Whether one agrees with that reason for the refusal or not, it has “nothing to do with sexism.”80
If a physician refused to provide abortions on the belief that women are less deserving of medical
76 Francescutti v Vancouver (City), 2017 BCCA 242 at para 21. 77 See, for example, Ontario Human Rights Code, supra note 75 at s 18. 78 The analysis in this section of a claim of discrimination on the basis of sex in respect of abortion equally applies to a claim of discrimination on the basis of disability in respect of assisted death, assuming that the conscientious objection in the latter case also stems from a moral conviction concerning the termination of human life. 79 Ryan T Anderson, “Disagreement is Not Always Discrimination” (2018) 16:1 Georgetown JL & Public Policy 123 at 141 80 Ibid. 208 treatment than men, that would be discrimination on the basis of sex – but that is not the operative belief here. The view that conscientious refusals to provide abortion due to the perceived humanity of the foetus amount to discrimination on the basis of sex seems to be premised in part on a belief that healthcare workers must provide all lawful healthcare services – yet no law or policy in Canada imposes this obligation.
Clinical competence is a common reason for refusals of treatment, as is the conclusion that the treatment is not medically necessary. It is incorrect to say that a dermatologist who refuses to perform an abortion because of competence is guilty of discrimination based on sex.
The same is true in the case of a refusal because of conscience. Although the refusal would violate a legal obligation imposed on healthcare workers to perform all healthcare services (if that obligation existed), the refusal would still fail to be discrimination.81 Healthcare workers are expected to be even-handed in delivering healthcare services, but that expectation does not erase the legal difference between “discrimination and a distinction”.82 The fact that a distinction has a
“negative impact on an individual in a protected group” is not enough to prove discrimination, for not “every distinction is discriminatory.”83 Discrimination, in Canadian law, is understood as a “distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or
81 In CV v Mount Sinai Hospital, 2016 HRTO 941, the claimant became pregnant with twins from in vitro fertilization, but only wanted one child and sought to abort one of the fetuses. The hospital refused because “the circumstances did not fit with the hospital’s policy regarding fetal reduction surgery” (para 2). The claimant underwent the procedure elsewhere. She sued under Ontario’s Human Rights Code, alleging discrimination based on her sex and family status. The Tribunal noted that, to prove discrimination, it is “not sufficient to establish only that a person has been denied a service that is ‘linked to’ a prohibited ground” – proof is needed that “a person has been denied equal access because of a” prohibited ground of discrimination under the Code (para 38). One must show “a link between the applicant’s membership in a group identified by a Code-protected ground and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact” (para 41). The Tribunal dismissed the claim of discrimination. While the hospital’s refusal to abort one of the fetuses implicated the claimant’s sex and pregnancy, the hospital did not make the refusal because of her sex or pregnancy. 82 McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4 at para 49, [2007] 1 SCR 161. 83 Ibid. 209 disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”84
The growing – and I submit ill-conceived – acceptance of the view that conscientious refusals in healthcare may constitute unlawful discrimination has diverted attention away from the rights and freedoms of healthcare workers. In Canada, public regulators of these workers are bound both by human rights codes that prohibit discrimination in employment on various grounds and by the Charter, which guarantees equality in s. 15 in addition to freedom of conscience and religion in s. 2(a). Bruce Ryder notes that this “bundle of statutory and constitutional rights” prevents a public regulator of physicians, for example, from “imposing barriers to equal participation in the profession or employment on the basis of religion or conscience.”85 It also means that the regulator must accommodate a physician’s conscience and religion to the point of undue hardship. Conscientious objection raises not only the issue of
“reconciling doctors’ religious freedom with patients’ equality rights” but also with “reconciling the equality rights of both doctors and patients.”86 While this thesis focuses on freedom of conscience, discriminating against conscience also limits the exercise of that freedom.87
Zooming out from whether the Charter guarantees specific procedures, the issue of whether it guarantees a right to healthcare in general also appears in the debate over conscientious objection. The Supreme Court of Canada has held that the Charter “does not confer a freestanding constitutional right to health care.”88 That said, where the state establishes a
84 Andrews, supra note 57 at 174-175. 85 Ryder, supra note 21 at 134-135. 86 Ibid at 137. 87 Conscience is not one of the prohibited grounds of discrimination listed in s 15 of the Charter, but it is arguably an analogous ground. For an explanation why that is so, see Mary Anne Waldron, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013) ch 7. 88 Chaoulli v Quebec (Attorney General), 2005 SCC 35 at para 104, [2005] 1 SCR 791 [Chaoulli]. 210 public healthcare system, it must do so in a way that complies with the Charter.89 In ongoing litigation in Ontario on obligatory referrals by physicians, the court of first instance relied on this statement of the Supreme Court to conclude that s. 7 of the Charter “confers a right to equitable access to such medical services as are legally available in Ontario and provided under the provincial healthcare system.”90 The court gave almost no further justification for its conclusion.
The notion that section 7 confers a right of equitable access to healthcare is problematic.
Inequity of access to healthcare will always exist due to geography, funding constraints, and clinical expertise (among other reasons). A Charter right of equitable access to healthcare may impose a positive obligation on the state to provide an adequate level of healthcare (however
“adequate” is measured). The Supreme Court has rejected this view of section 7 to date. This
Charter right does not impose a positive obligation on the state “to sustain life, liberty, or security of the person”. Rather, it prohibits the state from taking positive action that deprives citizens of these interests in ways that violate principles of fundamental justice. It is difficult to imagine how a public healthcare system – which, all things being equal, can only improve the interests protected by section 7 – could also, depending on the design of the system, violate those interests. It might violate these interests if the system has serious design flaws and private healthcare is prohibited by law.91 It is also unclear how a Charter right of equitable access to healthcare meaningfully differs from a Charter right to healthcare – a right that does not exist.
In sum, there is no freestanding Charter right to healthcare and a Charter right to equitable healthcare is dubious. There is also no freestanding Charter right to specific procedures that are provided as healthcare in Canada. The criminalization of those procedures has been
89 Ibid. See also Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 151 DLR (4th) 577. 90 The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579 at para 195, aff’d 2019 ONCA 393 [CPSO]. 91 Chaoulli, supra note 88. 211 determined by courts, to varying degrees, to violate section 7 of the Charter – but that conclusion does not create a right to receive those procedures from the state. Where healthcare workers refuse on moral grounds to provide procedures such as abortion or assisted death (to anyone), these refusals do not constitute discrimination on the basis of sex or disability.
The notion of a collision between the rights of patients and physicians that is created by conscientious objection is flawed. The statement of the Supreme Court of Canada in Carter that suggests a collision is misleading. While individuals might refer colloquially to a “right” to healthcare because the Canadian state has created a public healthcare system, this is a discretionary state benefit – not a Charter right. Section 7 of the Charter confers a “right” to certain procedures (such as abortion and assisted death) in the sense of an entitlement to seek these procedures without fear of criminal liability.92 Section 7 does not confer an entitlement to the delivery of these procedures by the state.
These legal conclusions do not ease the personal pain and distress of patients who experience obstacles in obtaining lawful healthcare services such as abortion or assisted death.
This discussion does not seek to trivialize their adversity, which is real, but to grasp the legal contours of this issue in Canada. I submit that the understanding of these contours often suffers from imprecision, a tendency that increases the chance of legal errors. With these contours in mind, I turn to whether obligatory healthcare referrals justifiably limit freedom of conscience.
III. Referrals
In liberal democracies, the mainstream approach to conscientious objection in healthcare is to allow healthcare workers to “decline to provide legally permissible and publicly funded
92 This being said, the Supreme Court of Canada has not ruled out the possibility of criminalizing or proscribing abortion and assisted death (for example, prohibiting abortion in the third trimester of pregnancy). 212 health services if providing those services violates their freedom of conscience.”93 That allowance is granted generally or for specific procedures, through legislation enacted by states or policy directives issued by bodies that are authorized by states to regulate healthcare workers.
The right to refuse to perform procedures is often coupled with a duty to assist the patient after the refusal. One form of assistance is a referral by the objecting healthcare worker to a healthcare worker that is willing to perform the procedure.
In Canada, general policy directives of provincial bodies that are statutorily empowered to govern certain healthcare workers is the usual way of managing conscientious objection.94
Exceptions include legislation in Manitoba that protects conscientious objection in relation to medical assistance in dying95 and the conscience clause within the legislation in Quebec on assisted death.96 Legislation that protects conscientious objection is more common in the USA.97
The Illinois Health Care Right of Conscience Act is an example.98 In the UK, physicians may
93 Jocelyn Downie, Carolyn McLeod & Jacquelyn Shaw, “Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons” (2013) 21:3 Health L Rev 28 at 31. 94 See College of Physicians and Surgeons of Ontario, supra note 37; College of Physicians and Surgeons of Saskatchewan, Policy – Conscientious Objection, online:
New South Wales, objecting physicians must “direct” patients to a willing physician.102
In the European Union, the procedure-specific approach to conscientious objection is largely followed in relation to abortion. Among the 25 EU states in which abortion was lawful in
2013, physicians could conscientiously refuse to perform abortions in 21.103 Where a right of conscientious objection is provided for abortion, its nature varies depending on the country. In
France,104 Norway,105 and Italy,106 doctors may refuse to perform abortions but they must assist with the preparations for the abortion (pre-operative care). In the Netherlands, doctors may refuse to perform abortions and to provide pre-operative care, but they must inform other doctors
99 General Medical Council (UK), Personal beliefs and medical practice: Conscientious objection (2013), online:
The procedure-specific approach is also common for assisted death and euthanasia. In
Belgium, physicians may refuse to perform or participate in euthanasia.111 At the patient’s request, objecting physicians must give the patient’s medical record to a physician designated by the patient or to a designated support person. In Luxembourg, the legislation permitting euthanasia and assisted suicide contains a similar provision.112 Legislation in the Netherlands is silent on conscientious objection.113 In the USA, the states of Oregon, Washington, California,
Montana, and Vermont permit assisted death. Oregon, the first to allow the procedure in 1997, permits conscientious refusals to perform and refer. 114 However, if the objection is made “and the patient transfers his or her care to a new health care provider”, the objector “shall transfer, upon request, a copy of the patient’s relevant medical records to the new health care provider.”115
107 Wet afbreking zwangerschap (Netherlands), 1 May 1981, art 20.: 108 Sundhedsloven (Denmark), LBK nr 1202 af 14/11/2014, art 102. 109 Fiala & Arthur (2017), supra note 9 at 256; Fiala et al (2016), supra note 9. 110 Michael Cook, “Swedish midwife opposed to abortion appeals to European Court of Human Rights”, BioEdge (26 April 2017), online:
The province of Ontario in Canada is the only jurisdiction that currently obliges physicians to refer for assisted death if they refuse to perform it.116 The obligation, which applies to all healthcare services, is called an “effective referral” and is defined as a “referral made in good faith” and in a “timely manner” to a “non-objecting, available, and accessible” healthcare professional or agency.117 This policy has sparked litigation on the ground that it unjustifiably limits the freedom of conscience and religion of objecting physicians in s. 2(a) of the Charter.
Referrals are defended as striking a proper balance between allowing physicians to work conscientiously and ensuring access to healthcare. 118 The emerging (if not established) norm in liberal democracies is that “doctors whose personal beliefs require them to deviate from standard practices can deny treatment only if they give prior notice of their moral objections, refer patients in a timely manner to another doctor, and provide any necessary care in an emergency.”119
International bodies that adjudicate claims under human rights instruments such as the ICCPR and the ECHR have held that domestic laws on conscientious objection to abortion “must pertain to individuals, not institutions; must require objecting physicians to refer women to alternate accessible and willing providers; and must ensure that sufficient numbers of non-objecting providers are available.”120 In 2010, the Parliamentary Assembly of the Council of Europe
116 Wise Health Law, “Ontario Physicians Challenge Referral Policy for Medically Assisted Dying” (27 July 2017), online:
One measure of where most scholars stand today is the “Consensus Statement on
Conscientious Objection in Healthcare”. In June 2016, a group of philosophers and bioethicists held a workshop on this issue in Switzerland. The workshop produced the Consensus Statement, which features ten “ethical guidelines that should inform, at the level of legislations and institutional policies, the way conscientious objection in healthcare is regulated.”123 One point stipulates that, in the event of a “conflict between practitioners’ conscience and a patient’s desire for a legal, professionally sanctioned medical service, healthcare practitioners should always ensure that patients receive timely care.”124 Where practitioners conscientiously object, they
“ought to refer their patients to another practitioner who is willing to perform the treatment.”125
121 Council of Europe, PA, 2010 Ordinary Sess, Resolution 1763, The right to conscientious objection in lawful medical care (7 October 2010). 122 In 2018, Norway’s Supreme Court ruled in favour of a doctor who lost her employment after she refused, on moral grounds, to insert intrauterine devices into patients: see Michael Cook, “Win for conscientious objection in Norway”, BioEdge (21 October 2018), online:
In cases of emergency, “when referral is not possible, or when it poses too great a burden on patients or on the healthcare system”, objecting practitioners should perform the service.126
There is little case law on whether referrals unjustifiably violate the freedom of conscience of objecting physicians. The final ruling in the litigation on this issue in Ontario will be a leading case. The court of first instance – the Divisional Court of Ontario – concluded that referrals justifiably limit s. 2(a) of the Charter because referrals facilitate “equitable access” to healthcare.127 While the four physicians named as claimants argue that referrals violate their religious belief and their conscience, the Divisional Court based its ruling on religious freedom.
It declined to consider freedom of conscience. To demonstrate that an obligation to refer limits their freedom of conscience, the claimants must prove that the state action – imposing the duty to refer – interferes with that freedom in a way that is more than trivial or insubstantial. If these physicians satisfy that standard, the state must justify the interference.
Referrals are problematic for some physicians because, in their view, they amount to material cooperation with immoral activity. For these physicians, when it comes to abortion and assisted death, a referral is the same as saying “I don’t kill people myself but let me tell you about the guy down the street who does”.128 In other words, a referral is similar to driving the robber to the bank or providing contact information for a hitman – a degree of complicity that makes the driver no less a bank robber than the person who forces the teller to empty the safe at gunpoint and the informant no less a murderer than the person who works through the hit list.
I expect that a court will find that referrals limit the freedom of conscience of objecting physicians. While referrals do not require them to perform the perceived immoral act, they must
126 Ibid. 127 On appeal, the Ontario Court of Appeal substantially endorsed the legal analysis of the Divisional Court. 128 Rob Stein, “Pharmacists’ Rights at Front of New Debate”, The Washington Post (28 March 2005), online:
On this footing, it is reasonable to conclude that referrals limit the freedom of conscience of objecting physicians. The Divisional Court of Ontario concluded that obligatory referrals limit the religious freedom of physicians. I suspect that the same result would have been reached in relation to freedom of conscience.
The state must justify limits on Charter rights or freedoms.130 In my view, the outcome of the justification analysis for referrals will turn on whether the limit minimally impairs the
Charter right. As I explained in Chapter 4, this step of the proportionality analysis for assessing the justifiability of limits on Charter rights has done the heavy lifting where state action (in the form of legislation) is under scrutiny. Where the state action under scrutiny is an administrative decision, the inquiry into minimal impairment resembles the concept of accommodation to the point of undue hardship – otherwise known as reasonable accommodation.131 I agree with Bruce
129 R v Briscoe, 2010 SCC 13 at para 14, [2010] 1 SCR 411. 130 In Canada, the legal test for justification differs depending on whether the challenge is of a law or an administrative decision. While the challenge to a law is assessed under the Oakes test, the challenge to the decision of a state actor that engages “Charter values” is assessed under the test outlined in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. Step one is to identify the objectives of the statute that confers decision-making power on the administrative decision-maker. Step two is to ask how any Charter values engaged by the decision will be best protected in light of these statutory objectives. The Court in Doré emphasized, however, that the principle of proportionality is the focus of the justification analysis whether a law or an administrative decision is under review. 131 Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para 53, [2006] 1 SCR 256. 219
Ryder that, unless the state “can demonstrate that alternative means of ensuring access would not be as effective in protecting patients’ rights, the claimants will have a strong argument that requiring physicians with conscientious objections to provide formal referrals is not a minimal impairment of their Charter rights.”132
However, Canadian courts hesitate to find that state action unjustifiably limits a Charter right for the reason that alternatives achieve the state’s goal while doing less harm to the right. In the referral case from Ontario, the Divisional Court relied on Hutterian Brethren, in which
McLachlin C.J. of the Supreme Court of Canada held that courts should adopt a “more deferential posture” when scrutinizing a “complex regulatory response to a social problem” by the state.133 The Chief Justice noted that, in these cases, courts determine whether the state action
“falls within a range of reasonable alternatives.”134 On minimal impairment, she held that “courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.”135
With this in mind, the Divisional Court noted that “the fact that some health profession regulators in Canada have developed policies that are arguably less restrictive of physicians’ religious and conscientious freedoms does not mean that” the regulator in Ontario must adopt these policies, as long as the policy it adopts falls within a range of reasonable alternatives.136
In my view, the Divisional Court overstated the principle from Hutterian Brethren. The state does not enjoy unfettered latitude to choose between policy options that are more or less harmful to a Charter right. The range of reasonable alternatives is not boundless. McLachlin C.J.
132 Ryder, supra note 21 at 139. 133 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 37, [2009] 2 SCR 567 [Hutterian Brethren]. 134 Ibid. 135 Ibid at para 53. 136 CPSO, supra note 90 at para 174. 220 cautioned in Hutterian Brethren that while the state is “entitled to deference in formulating its objective, that deference is not blind or absolute.”137 The test for determining whether state action minimally impairs the Charter right is, as she put it, “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner.”138 In Oakes, the
Supreme Court noted that courts “need to know what alternative measures for implementing the objective were available to the legislators when they made their decisions.”139 Before tackling whether referrals fall within the range of reasonable alternatives, the range must be identified. In
Canada, alternatives to referrals that are less harmful to freedom of conscience already exist.
One alternative is a public office that manages controversial procedures. For assisted death, Alberta created a “care coordination service” that provides “information to patients who seek information about or access to medical assistance in dying, including information about all end of life care options”. 140 It also coordinates and facilitates “patient access to health services relating to medical assistance in dying and all end of life care options”.141 The service has “four care co-ordinators, all of them nurses, who act as central intake officers and arrange all aspects of the end-of-life procedure, including finding a doctor and two assessors, lining up the medications, scheduling the death and helping with the voluminous official paperwork.”142 The service has received positive reviews.143 A related policy that also does less harm to freedom of conscience than direct referrals is to require objecting physicians to lead the patient to the care
137 Hutterian Brethren, supra note 133 at para 55. 138 Ibid. 139 R v Oakes, [1986] 1 SCR 103 at 138, 26 DLR (4th) 200. 140 Alberta Health, Medical Assistance in Dying Care Coordination Service (2016), online:
The website of the public regulator of physicians in Ontario already has a searchable database of physicians with customizable search criteria such as the physician’s gender and language.144 It would not be onerous to add search criteria for the relatively few procedures and drugs that are known to attract conscientious objection. All of these policy options inflict less harm upon the freedom of conscience of healthcare workers than obligatory referrals. They are, by all accounts, inexpensive and effective. There is no evidence that these measures impair access to procedures or that they are inferior in this regard when compared to referrals.
Care coordination services and online registries would function well in cities and surrounding suburbs, but not in rural locations where no doctor will perform assisted deaths or give referrals for this procedure. Some might argue that, in these circumstances, the doctor must at least refer for the procedure (if not perform it). But why should the state not pay to bring a doctor to that community to perform these procedures when they are requested? If no doctor lives in the community, such a step would go beyond what is normally provided for other procedures. Residents of remote communities often absorb costs associated with traveling elsewhere for procedures that are not available in their community. It is helpful here to recall that neither healthcare in general nor specific procedures that are delivered through the healthcare system are freestanding Charter rights. While some may find it odd that a different standard of
144 College of Physicians and Surgeons of Ontario, “Find a Doctor”, online:
Some will argue that the state should not be expected to pay for a doctor to visit a rural community when a doctor already lives there but conscientiously refuses to perform a procedure.
The state, however, does not force healthcare professionals to live in certain places. They are not deployed like members of the armed forces and they are not employed by the state. What, then, justifies requiring the only doctor in a rural community to violate her conscience if she will not perform certain procedures (assuming that the procedures fall within her clinical competence) when referrals would be futile on account of geography and a lack of appropriate alternatives? In the absence of a Charter right to healthcare in general or to specific healthcare services, the justification for limiting the freedom of conscience of that doctor is, in my view, lacking. I reiterate that the norm in Canada – and most other liberal democracies – is to allow physicians to conscientiously refuse to perform procedures, regardless of where the physician resides.
According to the relevant policy in Ontario, the only doctor in a small town may conscientiously refuse to perform a procedure (as long as he refers). Where that doctor refuses to refer, an online registry or care coordination service would be equally effective in terms of identifying willing doctors – regardless of whether the patient lives in a large city or a small town.
I also reiterate that inequitable access is both a flaw and a feature of Canada’s public healthcare system. Quality of access varies across provinces, between urban and rural settings, and depending on the procedure. The state realistically cannot provide instant or problem-free access to healthcare. If that reality is tolerated on account of funding constraints and geography, why refuse to tolerate it for the sake of a basic human right? What is the compelling justification for facilitating access to healthcare services such as abortion and assisted death to a greater 223 extent than chemotherapy, heart surgery, or dialysis? It is one thing to not tolerate conscientious objection if it hinders access to healthcare services – though, even in that scenario, I submit there remains a good case for accommodation. The refusal to tolerate the exercise of freedom of conscience in healthcare is particularly difficult to justify given, as the Divisional Court of
Ontario accepted, that there is “no study or direct evidence that demonstrates that access to health care is, or was, a problem that was caused by physicians objecting on religious or conscientious grounds to the provision of referrals for their patients.”145
One might ask: why must the burden fall on the state to implement and bear the cost of measures like a care coordination service? Some may take the position that this burden should fall on the physicians who wish to exercise conscientious objection. Proponents of this view might distinguish a person’s conscience from a person’s disability, for example, with respect to the lengths to which the state should go in accommodating those interests. They may also note
Canada’s history of imposing a cost on the exercise of conscience – for example, in the form of alternative service for conscientious objectors to military service.
While a person’s conscience is not the same thing as a person’s disability, that does not mean that conscience is less worthy of accommodation. Just as there is no hierarchy of Charter rights, it is reasonable to say that there is no hierarchy of prohibited grounds of discrimination.
The interests that conscience protects – integrity and identity – as well as the harm or restrictions on participation in public life that can follow if a person cannot live conscientiously suggests that conscience should not be lightly limited. As for the history of imposing a cost on the exercise of conscience, the notion of a user fee for fundamental rights is antithetical to enshrining these rights in the supreme law of a state. In the Charter era, rightsholders do not pay for the use of
145 CPSO, supra note 90 at para 147. Despite this conclusion, the Court appears to have placed no weight on this factor in assessing whether obligatory referrals are a justifiable limit of s. 2(a) of the Charter. 224 their rights – section 1 of the Charter “guarantees” them.146 The use of these rights, however, may be limited if the standard in section 1 is satisfied – that is, if the limit is “reasonable” and
“demonstrably justified in a free and democratic society.”
The notion that objecting physicians – rather than the state – should pay for measures that accommodate their Charter rights looks at the issue from the wrong end of the telescope. To date, Canadian courts have not concluded that physicians (and other healthcare workers) are state actors. As such, the Charter does not apply to their actions. The Charter only applies to actions of the state. The decision of the Canadian state to create a public healthcare system therefore attracts Charter scrutiny. That scrutiny extends to regulatory bodies authorized by the state to regulate healthcare workers. When these bodies act, they must respect the Charter. The Charter neither guarantees healthcare in general nor specific healthcare services, but it does guarantee the freedom of conscience of healthcare workers.
Barriers to lawful healthcare services – whether created by geography, funding, competence, or conscience – can cause significant distress for patients. Ian Shearer, who was refused assisted death at a Catholic hospital and suffered on account of the delays associated with his transfer to a hospital that would perform the procedure, is an example.147 Another is
Jessica Leeder, a woman who encountered several regulatory hurdles before she obtained an
146 Neither do rights holders receive compensation for every state action that somehow disadvantages them. Suppose the state provided free university education in exchange for military service. Would a conscientious objector be entitled to compensation? There would seem to be no s. 2(a) claim as the state has not limited the objector’s freedom of conscience (unlike the case of conscription). The objector would have a stronger claim under s 15 (equality), but the benefit (free university education) is not a freestanding Charter right. Receipt of the benefit is also contingent on an activity (military service) that the objector is unwilling to do – and there is a compelling reason for the initiative (national defence/security) that would likely justify any finding of discrimination based on conscience or religion. 147 Tom Blackwell, “B.C. man faced excruciating transfer after Catholic hospital refused assisted-death request”, National Post (27 September 2016), online:
Critics might contend that barriers to contraception, abortion, and assisted death do more than cause distress. They might argue that these barriers inflict harm and injure dignity. Beyond obvious forms or harm (such as physical assault) or injury to dignity (such as racist or sexist legal regimes), what counts as harm or injury to dignity quickly becomes contested. Even if conscientious refusals to participate in procedures such as abortion or assisted death can be said to inflict harm or injure dignity, surely it is true that these refusals are usually inspired by the desire of healthcare workers to avoid harm or injury to dignity. While a patient may believe that an assisted death is a dignified death, the objecting physician may believe that intentionally ending a human life violates dignity. While a woman may believe that conscientious objection to
148 Jessica Leeder, “I wanted an abortion in Nova Scotia, but all around, barriers still remained”, The Globe and Mail (22 September 2018), online:
Regarding conscientious refusals to participate in contraception and abortion, it is evident that women – the persons adversely affected by these refusals – have historically experienced the wrongs of marginalization and oppression in many societies, and still do today. The cause of empowering women and freeing them from vulnerable socioeconomic situations is urgent and laudable. There is no evidence to suggest, however, that healthcare workers who refuse to participate in contraception or abortion wish to perpetuate these wrongs or oppose this cause.
These workers – some of whom are women – wish to not commit what they consider to be the killing of innocent human beings or preventing the generation of human life.
In the face of fundamental disagreements on the nature of harm and dignity, liberal democracy favours coexistence. Where citizens “harbour conflicting moral values that cannot be reconciled to a single conception of how one should live life, there is wisdom in the idea that the public sphere is for all to share, even where beliefs differ.”150 When the Supreme Court of
Canada stated that the Charter rights of patients and physicians must be reconciled, I believe the
Court was alluding to meaningful coexistence of these two groups. In Morgentaler, the leading
Canadian case on abortion, Wilson J. noted that the “basic theory underlying the Charter” is that the state “will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.”151 In Planned Parenthood v
Casey, the most significant ruling to date on abortion in the United States after Roe v Wade,
Kennedy J. stated that at “the heart of liberty is the right to define one’s own concept of
150 Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 337. 151 Morgentaler, supra note 58 at 166. 227 existence, of meaning, of the universe, and of the mystery of human life.”152 Healthcare, a field that grapples with life and death, engages many of these questions. It is thus a sector of society in which the liberal democratic state should be especially cognizant of its duty of neutrality and to not impose on all citizens a uniform vision of what is good and true. There may be no sector of society that is more imbued with moral considerations than healthcare. If there is a context in which protection for freedom of conscience should be robust, I submit healthcare is it.
I conclude that the principles of minimal impairment and reasonable accommodation require governments in Canada, in reconciling access to healthcare with the freedom of conscience of healthcare workers, to allow conscientious refusals to refer. Healthcare is a field that possesses a profound moral dimension. As for referrals, they require healthcare workers to closely participate with perceived immoral activity that these workers sincerely believe to be harmful. The state is able to honour the interests of patients and workers without undue hardship, in part because the services that attract conscientious objection are well known and few in number. For these reasons (among others mentioned in this case study), I submit that denying conscientious refusals to refer is an unjustified limit on freedom of conscience. Referrals do not fall within the range of reasonable alternatives of which Hutterian Brethren speaks.
The existence of policy alternatives to referrals in Canada – all of which reasonably ensure access to healthcare in a way that is less harmful to freedom of conscience – reinforces my conclusion that obligatory referrals unjustifiably limit s. 2(a) of the Charter. McLachlin C.J. stated in Hutterian Brethren that an alternative measure that is less harmful to the Charter right will trigger minimal impairment unless the alternative measure would “significantly compromise” the legislative goal.153 There is no evidence that the measures in Alberta and
152 Planned Parenthood of Southeastern Pa v Casey, 505 US 833 at 851, 112 S Ct 2791 (1992). 153 Hutterian Brethren, supra note 133 at para 60. 228
Quebec significantly compromise equitable access to healthcare. The decision, presumably after careful study, to pursue those options rather than referrals suggests there is no compromise.
I acknowledge, before concluding, that the principle of federalism in Canada permits a diversity of legislative responses by provinces on a given policy issue. The Divisional Court of
Ontario underlined this point to reinforce its rejection of alternative measures in other provinces.
LeBel J. of the Supreme Court of Canada said this in 2001: “In a system of divided legislative authority, where the members of the federation differ in their cultural and historical experiences, the principle of federalism means that the application of the Charter in fields of provincial jurisdiction does not amount to a call for legislative uniformity.”154 On this point, Peter Hogg opines that the “uniformity of provincial laws that would be entailed by a stringent requirement of least drastic means is in conflict with the federal values of distinctiveness, diversity, and experimentation.”155 If section 1 of the Charter “is to permit some accommodation of these federal values”, courts must afford provinces “a zone of discretion within which different legislative choices in derogation of a Charter right could be tolerated.”156
In Canada, there is a range of provincial approaches to conscientious objection in healthcare. I do not see how ruling out one – referrals – would materially harm federalism. The harm to a Charter freedom by retaining referrals, however, is evident. In terms of respective harm, I submit that more is at stake for freedom of conscience. I find it troubling that doctors in one province cannot work as conscientiously as their counterparts in others. This result means that the Charter – a national, constitutional bill of rights – can have varying levels of purchase across Canada on the same issue. If federalism requires the conclusion reached by the Divisional
154 R v Advance Cutting & Coring Ltd, 2001 SCC 70 at para 275, [2001] 3 SCR 209. 155 Peter W Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters, 2017) at 38-39. 156 Ibid. 229
Court of Ontario, I suggest that more study should be devoted to the issue of whether Canadian constitutional law has struck the appropriate balance between federalism and human rights.
Conclusion
This chapter considered freedom of conscience in healthcare, especially referrals by physicians. I submit that, at least in Canada, courts should rule that this policy unjustifiably limits freedom of conscience given the presence of practical and affordable alternatives that ensure access to services for patients and better protect the freedom of conscience of physicians.
These alternatives render it unnecessary for patients or physicians to sacrifice the interests that they wish to see accommodated. The Supreme Court of Canada has called for the reconciliation of these interests – a standard that arguably calls for deeper coexistence than balancing. I submit that these alternative policy options answer that call.
Curtailing conscience in healthcare sends the message that if you want to work in this field, you must leave your moral compass at home. This message neither grasps the personal significance and binding force of conscience nor the relationship between conscience, integrity, identity, and dignity. It also ignores the moral and ethical issues that often arise in healthcare.
Stephen Genuis and Chris Lipp argue that it will be a “noteworthy and significant day for individual practitioners, for the medical profession, for individual patients, and for society as a whole when we demand a preparedness to do what one believes to be unethical, wrong, or evil as a prerequisite professional responsibility in order to join the medical community.”157 In their view, it will be a “sobering moment, indeed, when a willingness to capitulate to regulatory demand becomes a more important and established value in the medical community than
157 Genuis & Lipp, supra note 16 at 14. 230 integrity of character and an unwavering resolve to do what is good.”158 It will be, as they put it, a “paradoxical state when we exhort doctors to ‘Do no harm’ but simultaneously compel them to do what they believe is harmful—as long as a patient requests it or an authority demands it.”159
The decision of the state to permit certain services as healthcare must be honoured in a liberal democracy, but not at the unjustified expense of basic freedoms that are prerequisites for such a society. Excluding moral convictions from public life that have lost politically and legally is “hazardous” – it invites “political unrest” and “shuts off a source of moral strength and wisdom for the future.”160 This hazard, which is acute in healthcare due to its subject matter, can be avoided by way of practical and affordable alternatives to referrals that simultaneously ensure access to healthcare and safeguard moral freedom in this field. Besides the prudential reasons for adopting these measures, I submit that freedom of conscience demands them – certainly in
Canada, and arguably wherever this human right is guaranteed by law.
158 Ibid. 159 Ibid. 160 Trigg, supra note 36 at 34. 231
Chapter 6 – Same-Sex Marriage in Canada Introduction...... 231
I. Solemnization of Marriage in Canada ...... 233 II. Same-Sex Marriage in Canada ...... 235 III. The Moral Judgment on Marriage ...... 240 IV. Marriage Commissioners ...... 248 V. Wedding Service Providers ...... 261 Conclusion ...... 272
Introduction
This case study considers two kinds of conscientious refusals in Canada that implicate same-sex marriage. The first kind concerns officials whose unique role is to solemnize civil marriages, but who refuse to do so for same-sex couples. In most provinces, these officials are called marriage commissioners. I refer to them as such. The second kind concerns services relating to the wedding celebrations of same-sex couples (such as cakes, flowers, and photography). This case study focuses on Canada, but it will aid in grappling with conscientious objection in relation to same-sex marriage elsewhere. It draws on jurisprudence and legal scholarship from Canada and abroad on the intersecting legal claims of conscientious objectors and same-sex couples in respect of marriage and services related to marriage.
The jurisprudence on conscientious objection to same-sex marriage is often framed as a clash between the religious freedom of objectors and the equality rights of same-sex couples.
Scholarship refers to conscientious objection, yet the substance of freedom of conscience is overlooked. I submit that objecting commissioners and wedding service providers can invoke freedom of conscience when they refuse to serve same-sex couples based on the moral judgment 232 that marriage is uniquely the spousal union of one man and one woman. These individuals may claim that they betray this moral conviction – and consequently injure their identity and integrity
– when they solemnize same-sex marriages or provide services for same-sex weddings.
This chapter has five parts. Part I explains how, as a matter of state authority, marriage is defined and delivered in Canada. Part II briefly describes the emergence of same-sex marriage in
Canada and the ensuing litigation sparked by objecting marriage commissioners. The leading judicial intervention, a reference opinion from Saskatchewan, rejected accommodation for objecting commissioners. Part III unpacks the moral judgment that marriage is uniquely the spousal union of one man and one woman. This moral judgment need not depend on religion, but that it can is a reminder that freedom of conscience – as I envision this human right in this thesis
– protects both religious and secular conscience. Part IV considers the legal claim of commissioners under freedom of conscience. I conclude that refusing to accommodate commissioners is a justifiable limit on this freedom. In Part V, I consider individuals such as bakers and florists who refuse on account of conscience to provide services for the weddings of same-sex couples. I conclude that, even where these refusals do not stem from bigotry or animus toward LGBTQ persons, the inevitable and profound harm that these refusals can inflict on these persons justifies the decision not to accommodate this form of conscientious objection.
The negative outcome for the conscientious claimant here versus the positive outcome for the conscientious claimant in the context of healthcare is, in part, the product of a significant difference in the gravity of what is at stake. Conscientious objection in healthcare often engages with life and death. This is not the case for marriage. In short, there is a more profound clash of interests such as harm and dignity respecting healthcare than marriage.
233
I. Solemnization of Marriage in Canada
The Canadian Constitution assigns jurisdiction over the solemnization (or performance) of marriage to the provinces, while the definition of marriage falls under federal jurisdiction.1
The federal government has jurisdiction over “Marriage and Divorce”, which includes the power to determine who can marry. The provinces, meanwhile, have jurisdiction over the
“Solemnization of Marriage”.2 In short, the provinces oversee the delivery of marriage, as the federal government defines it, to the public.
Today, the procedure for obtaining civil marriage in Canada varies (somewhat) depending on the province.3 In most, there is one type of official called a marriage commissioner that exists solely to solemnize civil marriages. In others, specified officials – such as judges, municipal clerks, and mayors – can solemnize civil marriages; there is no standalone role of marriage commissioner. One province, New Brunswick, follows a hybrid approach: there is a standalone role (called a civil officiant), but other officials (such as judges) can also solemnize marriages. In this case study I focus on the standalone role, as it has been the focus of litigation.
In Canada, religious officials (such as rabbis, imams, and clergy) often double as civil marriage commissioners so that the state may give civil effect to the marriages they perform within their faith tradition. In Ontario, Canada’s most populated province, more than 22,000 persons from a variety of faith traditions are registered as religious marriage officiants.4 Such religious officials are usually authorized to perform (non-religious) civil marriages, but such
1 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, s 91(26). 2 Ibid, at s 92(12). 3 In the Province of Quebec, there is – in addition to civil marriage – a distinct legal relationship that is termed a “civil union”: see Éducaloi, “Civil Union”, online:
At Confederation, the distinction between civil marriage and religious marriage was almost non-existent for two reasons. First, religious officials performed nearly all marriages at that time. Other than in what is now the province of British Columbia, any role akin to marriage commissioners did not exist.5 Second, the opposite-sex definition of marriage at common law mirrored the definition of marriage in Christianity, the dominant faith tradition in Canada in
1867.6 The notion of a distinction between civil and religious marriage before 2005 (the year that same-sex marriage arrived across Canada) would have been strange to many Canadians, since the legal definition of marriage “aligned with dominant religious understandings” and “most marriages in Canada are performed in a religious context.”7 The distinction would have been familiar to individuals of a faith tradition that permits a religious form of divorce (such as
Judaism) or to individuals who were first married in a faith tradition that rejects divorce but, after obtaining a divorce, remarried in a civil ceremony (such as Catholicism).8 Even today, the distinction is near invisible if the couple is married (for the first time) in a religious ceremony, as both forms of marriage are usually given effect then by one officiant.
5 An Ordinance Respecting Marriage in British Columbia, Ordinances of British Columbia, 1865, No 21; An Ordinance to Regulate the Solemnization of Marriage, Ordinances of the United Colony of British Columbia, 1867, No 33. Registration of (religious) marriages with the state occurred from before Confederation in certain provinces. In Nova Scotia, optional registration began in 1758 and mandatory registration began in 1864: see Mélanie Méthot, “Finding the Ordinary in the Extraordinary: Marriage Norms and Bigamy in Canada” in Julia Moses, ed, Marriage, Law and Modernity: Global Histories (New York: Bloomsbury, 2017) 187 at 188. 6 Hyde v Hyde (1866), LR 1 P & D 130 at 133 (“… marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”). 7 Bruce Ryder, “State Neutrality and Freedom of Conscience and Religion” (2005) 29 SCLR 169 at 188. Since the publication of this article, it appears that the number of religious marriages in Canada has steadily declined in comparison to the increase of civil marriages and common law marriages. For example, in British Columbia, only 37.6% of all marriages in 2011 were solemnized in a religious ceremony: see British Columbia, Vital Statistics Agency, Annual Report 2011 at 123, online:
Over time, the Parliament of Canada has rendered civil marriage increasingly distinct from religious marriage.9 In 1882, it lifted the prohibition maintained by some Christian denominations against a man marrying his dead wife’s sister.10 The advent of civil divorce in
Canada in 1968 by way of the Divorce Act further distinguished civil from religious marriage, especially with respect to religious traditions that do not recognize divorce. While a divorced
Catholic cannot remarry in the Church, civil marriage with a new spouse is available.
Civil divorce especially affected the mainly Catholic province of Quebec. Before 1968, religious officials were the only marriage officiants: “For the first century after Confederation, no concept of civil marriage profaned Quebec law.”11 In 1968, the Civil Code of Lower Canada was amended to allow the solemnization of civil marriages in Quebec.12 As for other provinces, civil marriage arrived in (colonial) British Columbia in 1865, in Manitoba in 1931, and in
Ontario in 1950. The other common law provinces instituted civil marriage after 1960.13
The emergence of same-sex marriage in Canada in 2005 not only shone a light on how civil and religious marriage interact in Canada. It also marked a further step in the development of civil marriage as a distinct institution from religious marriage.
II. Same-Sex Marriage in Canada
On December 20, 2000, the Netherlands became the first country to allow same-sex marriage. As of June 2019, same-sex marriage exists in 30 countries.14 In these countries,
9 See Robert Leckey, “Profane Matrimony” (2006) 21:2 CJLS 1-23. 10 An Act concerning Marriage with a Deceased Wife’s Sister, SC 1882, c 42. For more on how Parliament has legislated with respect to rules concerning which relationships cannot result in marriage, see Ronald C Stevenson, “Federal Marriage Legislation” (1997) 20:1 Can Parliamentary Rev 11-16. 11 Leckey, supra note 9 at 12. 12 An Act respecting civil marriage, SQ 1968, c 82. 13 Janet Epp Buckingham, Fighting Over God: A Legal and Political History of Religious Freedom in Canada (Montreal: McGill-Queen’s University Press, 2014) at 158-159. 14 Pew Research Center, “Gay Marriage Around the World”, online:
Utah – enacted laws that allow commissioners to conscientiously refuse to perform same-sex marriages.17 In countries that allow same-sex marriage, the trend has been to grant a right of refusal to religious officials if their religion does not recognize same-sex marriage – even if the religious official is empowered to effectuate a civil marriage during the religious ceremony.
While same-sex marriage became available across Canada in 2005, it made its Canadian debut on June 10th, 2003. On that date, the Ontario Court of Appeal affirmed that the common law definition of marriage – a union of one man and one woman to the exclusion of all others – unjustifiably breached the guarantee of equality in the Charter.18 Rather than suspend the effect
(2000), South Africa (2006), Belgium (2003), England and Wales (2013), Iceland (2010), New Zealand (2013), Spain (2005), Brazil (2013), Finland (2015), Ireland (2015), Norway (2008), Sweden (2009), Canada (2005), France (2013), Luxembourg (2014), Portugal (2010), United States (2015), Colombia (2016), Germany (2017), Malta (2017), Scotland (2014), Uruguay (2013), Australia (2017), Austria (2019), Taiwan (2019), Ecuador (2019), and Mexico (2009). Within Mexico, same-sex marriage is legal in some states and illegal in others. 15 Bruce MacDougall et al, “Conscientious Objection to Creating Same-Sex Unions: An International Analysis” (2012) 1:1 Can J Human Rights 127-164. 16 Mahita Gajanan, “Gay Man Denied Marriage License by Kim Davis Loses Bid to Challenge Her for Kentucky Country Clerkship”, Time (22 May 2018) online:
237 of its judgment to let Parliament replace the unconstitutional common law with legislation, the
Court gave its ruling immediate effect – and same-sex marriage became available in Ontario.
The federal government did not appeal the Ontario judgment to the Supreme Court of
Canada. Instead, it proposed legislation to allow same-sex marriage across Canada. In July 2003, the federal government asked the Supreme Court, in a reference case, to opine on the constitutionality of the proposed legislation, which had two key features. First, the Bill defined civil marriage as “the lawful union of two persons to the exclusion of all others”.19 Second, its preamble noted that the legislation did not affect the “freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs”.20
In December 2004, the Supreme Court released its opinion in Reference re Same-Sex
Marriage.21 The Court expressed the view that Parliament could expand civil marriage and that the proposed definition respected the Charter. However, federal protection of religious officials with respect to performing same-sex marriages would be ultra vires as the certification of marriage is, in Canada, a matter of exclusive provincial competence. Consequently, protection for religious officials (as well as civil marriage commissioners) would be a matter for the provinces to consider. The Court predicted, however, that a provincial law requiring unwilling religious officials to perform same-sex marriages “would almost certainly” unjustifiably limit their religious freedom under the Charter.22 The Court declined to pronounce on whether a definition of civil marriage that is restricted to opposite-sex couples complies with the Charter. It noted, however, that expanding civil marriage to encompass same-sex unions “points
19 Civil Marriage Act, SC 2005, c 33, s 2 [Civil Marriage Act]. 20 Ibid (preamble). 21 Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698 [Marriage Reference]. 22 Ibid at para 56. 238 unequivocally to a purpose which, far from violating the Charter, flows from it.”23 The Court was not asked to consider the case of marriage commissioners who refuse to perform same-sex marriages, although the Court did state that religious officials cannot be forced to perform a same-sex marriage even in a (non-religious) civil marriage ceremony.24
After Marriage Reference, Parliament enacted the Civil Marriage Act. When it came into force on July 20, 2005, civil marriage for same-sex couples became available across Canada. The statute defines civil marriage as the “lawful union of two persons to the exclusion of all others.”25 The statute speaks of civil marriage as a freestanding institution so as to emphasize and
“establish a clear divide between civil and religious law” in relation to marriage.26 The preamble refers to civil marriage repeatedly. The key provision of the statute, section 2, defines marriage
“for civil purposes” as the union of two persons to the exclusion of all others.
Despite the conclusions on provincial jurisdiction in Marriage Reference, the federal statute still provides that religious officials are “free to refuse to perform marriages that are not in accordance with their religious beliefs.”27 The preamble declares that the public interest is not harmed by a diversity of views on marriage. Section 3.1 of the Civil Marriage Act also provides that “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction” under any federal law “solely by reason of their exercise, in respect of marriage
23 Ibid at para 43. 24 Ibid at para 60. This conclusion by the Court is peculiar. The Catholic priest, if he performs a civil marriage outside of a Catholic ceremony, acts in the same capacity as the Catholic layperson who serves as a marriage commissioner. Why does the priest enjoy an exemption from performing a same-sex civil marriage while the lay commissioner, who objects on the same moral grounds, does not? For civil marriages with no religious component, the outcome on accommodation – be it yes or no – should arguably be the same for both: see Bruce Ryder, supra note 7 at 190-191. 25 Civil Marriage Act, supra note 19 at s 2. 26 Daniel Cere, “Canadian Conjugal Mosaic: From Multiculturalism to Multi-Conjugalism?” in Joel A Nichols, ed, Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and The Boundaries of Civil Law and Religion (New York: Cambridge University Press 2012) 284 at 286. 27 Civil Marriage Act, supra note 19 at s 3. 239 between persons of the same sex, of the freedom of conscience and religion” under the Charter or “the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.”28 Section 3.1 has not been interpreted in any depth by Canadian courts. It has been considered to “not implicate matters beyond the limits of federal jurisdiction”, meaning that provincial laws that oblige marriage commissioners to solemnize same-sex civil marriages do not “contradict or in any way frustrate the operation” of this statutory provision.29
The unanswered question after Marriage Reference and the enactment of the Civil
Marriage Act was whether marriage commissioners could refuse to perform same-sex civil marriages. Certain provinces – Manitoba, Saskatchewan, and Newfoundland and Labrador – told commissioners to perform all otherwise licit marriages or resign. Others, such as Ontario and
British Columbia, informally accommodated objecting commissioners. New Brunswick tabled
(but did not enact) amendments to its legislation on the solemnization of marriage to allow conscientious objection. Only Prince Edward Island legislated such changes.30
After the enactment of the Civil Marriage Act, the issue of objecting marriage commissioners became especially litigious in Saskatchewan. The outcome was a reference opinion of that province’s Court of Appeal in 2011.31 The reference stemmed from the government of Saskatchewan’s request for a judicial opinion on the constitutionality of proposed
28 Ibid at s 3.1. 29 Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3 at para 52, 327 DLR (4th) 669 [Marriage Commissioners]. 30 Lorraine P Lafferty, “Religion, Sexual Orientation and the State: Can Public Officials Refuse to Perform Same- Sex Marriage?” (2006) 85:2 Can Bar Rev 287 at 289-290, 313-315. See also Marriage Act, RSPEI 1988, c M-3, s 11.1. The relevant provision provides that “a person who is authorized to solemnize a marriage under this Act may refuse to solemnize a marriage that is not in accordance with that person’s religious beliefs.” Given the lack of reference to conscience, a non-religious commissioner who refuses on strictly conscientious grounds to performing same-sex civil marriages would seemingly not benefit from this provision. 31 Marriage Commissioners, supra note 29. For a summary of the separate lawsuits in Saskatchewan that led to the appellate reference decision, see paras 11-15. 240 changes to that province’s legislation for the solemnization of marriage. One of the proposed changes would have exempted commissioners employed as of November 5, 2004, from performing same-sex marriages – the date on which a Saskatchewan court ruled in favour of same-sex marriage on equality grounds under the Charter.32 The other proposed option would have exempted all commissioners. In both cases, access to the exemption hinged on performance of a same-sex marriage being “contrary to the marriage commissioner’s religious beliefs”.33 In
Marriage Commissioners, the Court of Appeal opined that, in relation to same-sex couples who want civil marriage, both amendments would unjustifiably violate the equality guarantee in s. 15 of the Charter.34 The parties did not seek leave to appeal the reference opinion to the Supreme
Court. It remains the leading judicial consideration in Canada on whether commissioners may refuse to perform same-sex marriages for religious reasons, as the decision did not focus on conscience. There has been recent litigation on this issue in Manitoba35, in which the claim of the objecting commissioner was denied essentially according to the rationale in Marriage
Commissioners. There is continuing litigation on the issue in Newfoundland and Labrador.36
III. The Moral Judgment on Marriage
In this section, I consider the moral judgment on marriage that may inspire the decision of at least some marriage commissioners to refuse (on account of conscience) to perform same- sex civil marriages: the conviction that marriage is uniquely the spousal union of one man and
32 NW v Canada (Attorney General), 2004 SKQB 434, 246 DLR (4th) 345. 33 Marriage Commissioners, supra note 29 at para 17. 34 For a detailed discussion of how the Court reached this conclusion, see Jared Epp, “Justified Coercion: A Case Comment on the Marriage Commissioner Reference” (2012) 75:1 Sask L Rev 97-111. 35 Kisilowsky v Her Majesty the Queen, 2016 MBQB 224 [Kisilowsky MBQB]; Kisilowsky v Manitoba, 2018 MBCA 10. The claimant, Kevin Kisilowsky, did not seek leave to appeal the decision of the Manitoba Court of Appeal to the Supreme Court of Canada. 36 Dichmont v Newfoundland and Labrador (Government Services and Lands), 2015 CanLII 4857 (NL SC). The claimant, Desiree Dichmont, died on December 4, 2016. To the best of the author’s knowledge, her case remains active. 241 one woman.37 I engage with objections to accommodating conscientious refusals based on this moral judgment, such as the suggestion that it is no different from moral judgments on interracial marriage or divorce. I also compare the moral judgment that marriage is only opposite-sex to moral judgments on sexual intimacy between persons of the same sex. Finally, I consider whether religious freedom is a more appropriate form of liberty than freedom of conscience for advancing the legal claims of objecting commissioners.
For freedom of conscience to bear on state action that requires an objecting commissioner to perform same-sex civil marriages, the commissioner must hold a relevant moral judgment. I have proposed in this thesis that the freedom to live in alignment with subjective moral judgments, regardless of their source, is best understood as the substance of freedom of conscience. The substance of this freedom means that courts will have to determine, as a threshold issue, whether the judgment of the claimant concerns morality. As noted in Chapter 2, determining what counts as a matter of morality is a longstanding source of debate. That said, there is a relatively stable consensus that certain issues engage questions of moral right and wrong: life, death, physical harm, and telling the truth (to name only a few). Is there a moral judgment on marriage that at least some objecting commissioners hold? If there is, what is it?
I do not think it is controversial to say that marriage is a moral issue – or at least that it has moral implications, given the interests it engages. As one American judge put it, no interpersonal union “is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.”38 Section 2(a) of the Charter exists so that “society does
37 The word “spousal” can be defined as “Relating to marriage or to a husband or wife”: see Oxford Living Dictionaries, sub verbo “spousal”, online:
Canadian jurists have recognized marriage as a moral issue. In Miron v Trudel, in a dissenting opinion, Gonthier J. of the Supreme Court of Canada calls marriage a “basic social institution”.42 He quoted the US Supreme Court in Maynard v Hill, which described marriage “as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution.”43 Maynard describes marriage as an institution that the public is
“deeply interested” in properly maintaining, for it is “the foundation of the family and of society, without which there would be neither civilization nor progress.”44 The Court in Maynard viewed marriage as only opposite-sex. Justice Gonthier appears, in Miron, to view marriage as such.
39 R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at 759, 35 DLR (4th) 1. 40 ABC News, “Germany legalises same-sex marriage after Angela Merkel allows free vote” (30 June 2017) online:
In Egan v Canada, La Forest J. noted that marriage “has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions.”45 He described the “ultimate raison d'être” of marriage as
“firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship.”46 He held that, in “this sense, marriage is by nature heterosexual” – it would “be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie” traditional marriage.47 Finally, in M v H, Bastarache J. recognized that “marriage is imbued with moral significance for many people” and that this moral significance is “the source of their objection to the extension of any marital or quasi-marital status to same-sex couples”.48
The moral judgment on marriage that an objecting commissioner might profess could be distilled to this: marriage is the spousal union of one man and one woman – a natural reality that predates and transcends the state and that is designed to perpetuate the human race in a way that promotes human flourishing and the common good. What is now often called traditional marriage is not only a definition of marriage. It is also, by virtue of marriage being a moral reality, a moral judgment. If the state gets marriage wrong in the view of persons who hold this moral judgment, those persons may be inclined to refuse to endorse or reinforce that (moral) mistake.
The moral judgment that marriage is uniquely the spousal union of one man and one woman concerns what marriage is, and what it is not. Comparing it to moral judgments on
45 Egan v Canada, [1995] 2 SCR 513 at 536, 124 DLR (4th) 609 [Egan]. 46 Ibid. 47 Ibid. 48 M v H, [1999] 2 SCR 3 at 176, 171 DLR (4th) 577. 244 interracial marriage therefore only goes so far.49 The moral judgment on opposite-sex marriage suggests that objecting commissioners would perform (opposite-sex) interracial marriages. If a commissioner refuses to solemnize interracial unions, it is likely for reasons other than the notion that the union is not marital (for example, the belief that certain races are superior to others or the view that racial purity must be preserved). None of the reasons for concluding that marriage is only opposite-sex supports the notion that what counts as a marriage depends on race.50
Some individuals hold the moral conviction that marriage is indissoluble while both spouses are alive, such that divorce is immoral. If a commissioner refused to perform the civil marriage of a divorced person based on that conviction, I see no reason why his claim would be more or less viable than if he were asked to perform a same-sex marriage. In both cases, the moral conviction points to what marriage is. These cases do not often arise because, unless the commissioner were to ask an opposite-sex couple about their marital history or already know it due to circumstances such as the size of the community, he would be unaware of circumstances
49 This comparison surfaced, for example, in the litigation over the proposed law school that Trinity Western University, a private Christian university in British Columbia. Trinity requires all students to sign a code of conduct that, in keeping with its Christian beliefs, forbids sexual intimacy outside of a marriage (which Trinity believes to be only the spousal union of one man and one woman). Detractors of Trinity’s application for accreditation of its law school suggested that the prohibition of sexual intimacy outside of opposite-sex marriage resembled a case in which an American university prohibited marriage between white students and black students. 50 I do not mean that a person who judges interracial marriage to be immoral cannot invoke freedom of conscience. If a marriage commissioner refuses to perform an interracial marriage, whether that refusal is protected by freedom of conscience will be determined according to the analytical approach to this human right that I propose. Is there a moral judgment that the state has interfered with in a more than trivial or insubstantial manner? If so, is that interference justified? One crucial distinction between opposition to same-sex marriage and opposition to interracial marriage is that the latter concerns who should and should not marry (for reasons unconnected to the nature of marriage), while the former concerns who can and cannot marry because of what marriage is. For this reason, some have argued that refusals to participate in same-sex marriage celebrations resemble refusals to participate in abortion: see Ryan T Anderson, “Disagreement is Not Always Discrimination” (2018) 16:1 Georgetown JL & Public Policy 123-145. Refusals concerning same-sex marriage and abortion flow from a conclusion on the nature of the matter at issue (marriage and life), whereas refusals concerning interracial marriage do not. 245 that might lead him to conscientiously object.51 Where the couple is same-sex, such circumstances are obvious for a commissioner who professes marriage as uniquely opposite-sex.
Instead of the moral judgment that marriage is only opposite-sex, some commissioners refuse to perform same-sex marriages on the ground that sexual intimacy between persons of the same sex is immoral. Orville Nichols, a commissioner in Saskatchewan, did not “have a problem with same sex couples marrying, but he could not perform the ceremony” due to his conviction that the Bible “directs him to believe that God hates homosexuality and that God has said that man shall not sleep with man, nor woman with woman.”52 Given these “biblical teachings”, it was “contrary to his religious beliefs to perform a marriage for a same sex couple.”53
In Marriage Commissioners, Smith J.A. appears to presume that this sort of thinking inspires all objecting commissioners. She describes the objection of commissioners to performing same-sex marriages as partly based on the belief that “a same-sex union is sinful”.54 In her view, requiring objecting commissioners to perform same-sex marriages “affects their religious objection to same-sex conduct only in a secondary way.”55 As she puts it, they “are not themselves compelled to engage in the sexual activity they consider objectionable” – their objection is that it is “sinful for others to engage in such activity.”56 Richard Moon also views the objection of commissioners as targeting sexual intimacy: “A public official, such as a marriage
51 Applicants for civil marriage are presumably required to disclose their marital status prior to obtaining civil marriage, so as not to be married to more than one person at a time. If the commissioner is made privy to that information, he may come to know whether any of the applicants is divorced. 52 Nichols v MJ, 2009 SKQB 299 at para 10, 339 Sask R 35. 53 Ibid. 54 Marriage Commissioners, supra note 29 at para 140. 55 Ibid at para 148. 56 Ibid. 246 commissioner, should not be excused from performing his or her duties simply because she or he disapproves of the conduct of others and the law’s acceptance or affirmation of that conduct.”57
The moral judgment that marriage is uniquely opposite-sex need not assess the morality of sexual acts. It may turn on the nature of marriage, on what kind of union counts as marital.
The conversation leading to a conclusion that marriage is only opposite-sex is “fundamentally a debate about what marriage is”, not a debate about the “morality of homosexual acts or their heterosexual counterparts.”58 The moral judgment of Orville Nichols on sexual intimacy differs from a moral judgment on marriage. I sympathize with Smith J.A. and Richard Moon on the weakness of the connection between an objecting commissioner’s refusal to perform a same-sex marriage and his moral or religious conviction on sexual intimacy. That commissioner would likely deem sexual intimacy between any unmarried couple, same- or opposite-sex, immoral. If a commissioner refuses to solemnize based on that conviction, he overlooks the reality that most couples are sexually intimate prior to civil marriage and that the sexual intimacy would likely continue regardless of the marriage ceremony (and therefore regardless of the actions of the commissioner). The commissioner who refuses to solemnize a same-sex union for reasons relating to sexual morality may fail, in doing so, to meaningfully manifest his moral judgment on sexual intimacy. This commissioner would likely be uncomfortable with the prospect of solemnizing this union, but it is reasonable, in my view, to suggest that requiring him to solemnize same-sex unions amounts to a trivial interference with his freedom of conscience or religion (and, as such, does not limit that Charter right).
57 Richard Moon, “Conscientious Objection by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages” in Benjamin L Berger & Richard Moon, eds, Religion and the Exercise of Public Authority (Portland: Hart Publishing, 2016) 149 at 151. 58 Sherif Girgis, Ryan T Anderson & Robert P George, What is Marriage? (New York: Encounter Books, 2012) at 10. 247
Even if the judgment that marriage is uniquely opposite-sex constitutes a moral judgment, is freedom of religion – rather than freedom of conscience – the more appropriate human right on which to anchor the claims of religious marriage commissioners? While much scholarship on commissioners who refuse to perform same-sex marriage describes such refusals as conscientious objection,59 this issue has been framed before and by courts in Canada as a clash between religious freedom and equality. This framing may be partly a product of the attention that has been paid to freedom of religion in s. 2(a) and the neglect of freedom of conscience. This case study may offer an example of how freedom of conscience can be subsumed by freedom of religion. In Marriage Reference, the Supreme Court of Canada considered the religious freedom of clergy to not perform same-sex marriages. In the lawsuits in Saskatchewan that led to
Marriage Commissioners, the public face of the objecting marriage commissioners – Orville
Nichols – rested his claims on his Christianity. In the Manitoba litigation, the claimant (Kevin
Kisilowsky) is a Christian pastor who wants to perform civil marriages on the side. In
Newfoundland and Labrador, the now deceased claimant (Desiree Dichmont) is a marriage commissioner who bases her refusal on her Christianity. It is easy to see why, in Canada, religious freedom has been the Charter freedom of choice for objecting commissioners.
Even so, some might argue that the claims of objecting commissioners are better captured by religious freedom than freedom of conscience. They might say that if religious commissioners
59 See Richard Moon, supra note 57; Bruce MacDougall et al, supra note 15; Marco Doerks, “Conscientious Objectors and The Marrying Kind: Rights and Rites in Dutch Public Discourse on Marriage Registrars with Conscientious Objections Against Conducting Same-Sex Weddings” (2017) 23:3 Theology & Sexuality 209-228; Christopher McCrudden, “Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights” in Susanna Mancini & Michel Rosenfeld, eds, The Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality (Cambridge: Cambridge University Press, 2018) 414 at 414- 462; Bruce MacDougall, “Refusing to Officiate at Same-Sex Civil Marriages” (2006) 69:2 Sask L Rev 351-374; Andrew Hambler, “Recognising a Right to ‘Conscientiously Object’ for Registrars whose Religious Beliefs are Incompatible with their Duty to Conduct Same-Sex Civil Partnerships” (2012) 7:3 Religion & Human Rights 157- 181; Stijn Smet, “Conscientious Objection to Same-sex Marriages: Beyond the Limits of Toleration” (2016) 11:2 Religion & Human Rights 114-139. 248 rely on statements in sacred texts on marriage and homosexuality, their claims must be based on religion. This argument ignores the fact that religions teach divine revelation as well as morality.
The Ten Commandments may come from God, but most would agree that they include moral commands. The Christian doctor who refuses to perform an abortion might trace her refusal to the sixth Commandment (You shall not kill), but there would be little debate that her refusal is equally moral as it is religious – and so equally (if not more) a matter for freedom of conscience than religious freedom. The source of a marriage commissioner’s refusal to perform same-sex marriages may be a religious text, but that does not automatically mean that his claim is, for the purposes of the Charter, one of religious freedom. The substance of the conviction matters.
Convictions about marriage are, at least for some religious persons, a matter of conscience. Notably, the references to marriage as a matter of morality in the jurisprudence of the Supreme Court of Canada make no appeal to religion. I submit that the case of an objecting marriage commissioner who is religious and believes that marriage is uniquely opposite-sex can be a case of religious conscience: an objection that stems from a moral judgment that has been formed by religion. The definition that I propose for freedom of conscience in this thesis encompasses all moral judgments, regardless of source. A commissioner who refuses to perform same-sex marriages due to a moral judgment is protected by freedom of conscience, whether she formed the judgment through religion or not.
IV. Marriage Commissioners
If a commissioner’s refusal to perform a same-sex marriage stems from a moral judgment on marriage, freedom of conscience applies. The analysis of a Charter claim follows: whether the state action limits freedom of conscience and, if it does, whether the limit is justified. In other words: does the state, by obliging objecting commissioners to perform same-sex civil marriages 249 on pain of dismissal, interfere with their freedom of conscience in a way that is more than trivial or insubstantial? If the answer to that question is yes, is the interference “reasonable” and
“demonstrably justified in a free and democratic society” – in a word, proportional?60
Many of the same scholarly arguments against conscientious objection appear in both case studies in this thesis. Here, they appear as the obstruction of access to a public benefit (civil marriage), the voluntary decision of commissioners to take up their role, the monopoly of commissioners in the delivery of civil marriage, and the imposition of the commissioner’s values when she refuses to solemnize same-sex marriages. My general response to these arguments is the same in both case studies: they breeze past the status of freedom of conscience – a fundamental freedom in the Charter and part of the supreme law of Canada. Freedom of conscience, along with the other rights and freedoms in the Charter, is an ingredient of a free and democratic society. While the exercise of these rights and freedoms in a plural society can create friction, that is a “hallmark” of a liberal democracy – not a sign of its malfunctioning.61
The fact that marriage commissioners are public agents is more accentuated in this case study as an argument against conscientious objection.62 The same can be said of the harm caused by the conscientious refusal (here to couples rather than patients). On the public service factor, my response to this argument resembles my response to the voluntariness argument in the healthcare case study: a person does not leave her moral convictions at home, regardless of whether her work is in the public or private sector. There is no principled reason, in my view,
60 Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. In the cases of objecting marriage commissioners that have been litigated so far in Canada, there has been no dispute over the sincerity of the belief that has led the commissioner to object. 61 Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 at para 36, [2001] SCR 772. 62 While the public nature of the Canadian healthcare system affords a public dimension to the role of healthcare professionals, marriage commissioners are directly employed (or at least directly contracted) by the state. 250 why citizens should be automatically expected to live less conscientiously in the public sector and entitled to live more conscientiously in the private sector.
There is also overlap between the case studies in terms of the philosophical and theoretical perspectives that animate the arguments against conscientious objection. In this case study, legalism and rigid secularism also fuel criticism of marriage commissioners who refuse to perform same-sex marriages. These perspectives emphasize the decision to enshrine same-sex marriage in law and the separation of church and state as reasons that should militate against accommodating marriage commissioners who object to same-sex marriage.63
Limitation
I expect that a Canadian court would find that requiring a commissioner to perform civil marriages for same-sex couples limits her freedom of conscience under s. 2(a) of the Charter if she professes, as a matter of conscience, that marriage is uniquely opposite-sex and refuses on that ground. I suspect a court would conclude that the objecting commissioner betrays herself – that she compromises her identity and integrity – if she performs a same-sex marriage (in other words, that the requirement to perform the same-sex marriage interferes with her freedom of conscience in a manner that is more than trivial or insubstantial). Canadian jurisprudence, such as Marriage Commissioners, favours the conclusion that requiring an objecting (religious) marriage commissioner to perform a same-sex marriage limits his religious freedom in s. 2(a). It is hard to imagine the opposite result if the case were litigated under freedom of conscience in s.
63 I flag the potential that, as in the healthcare case study, the claimant here – the marriage commissioner – may have legal claims apart from a Charter challenge via freedom of conscience. Requiring them to perform same-sex marriages (or else resign) may be discriminatory just as it is to require healthcare workers to perform procedures to which they are morally opposed or face discipline. If the commissioner is religious, the prohibited ground of “religion” in human rights codes would likely cover her (religious) conscience. If the commissioner is not religious, the absence of the prohibited ground of “conscience” in human rights codes poses a problem for that claimant. She would have to demonstrate that “conscience” is an unenumerated ground of equality in s. 15 of the Charter. 251
2(a) based on the moral judgment on marriage that is outlined in this chapter, especially if freedom of conscience is understood as primarily concerned with action rather than belief.
That said, in Marriage Commissioners, Smith J.A. doubted that a requirement to perform same-sex marriages limits s. 2(a).64 In her view, it was “far from clear that officiating at a civil marriage ceremony carries any implication or connotation” that the commissioner “necessarily approves of the particular union.”65 Richard Moon also argues that there is no limit on s. 2(a) in this context: marriage commissioners neither endorse the sexual intimacy of the same-sex couple nor engage in such sexual intimacy.66 Smith J.A. noted, however, that refusing to perform a same-sex marriage “without doubt expresses condemnation of same-sex unions and practices as socially harmful and perverse.”67 In other words, as Rex Ahdar observes, while performing the marriage “might well be neutral”, refusing to perform the marriage “is an overtly discriminatory act that causes psychological harm to couples so refused and perpetuates the prejudice and inequality that gays and lesbians have suffered historically.”68
There is, as Rex Ahdar points out, a logical gap here. It would be odd to say, in the healthcare context, that requiring a physician to perform an abortion does not force the physician to endorse the patient’s decision or require the physician to have an abortion. Freedom of conscience is concerned with the acts of the person who invokes conscience, and whether those acts are, in her estimation, immoral. Ahdar finds it “difficult to see how performing x is neutral
64 Marriage Commissioners features two concurring opinions: one by Richards J.A. (joined by two other judges) and one by Smith J.A. (joined by one other judge). Richards J.A. did not share the doubts of Smith J.A. on whether requiring objecting commissioners to perform same-sex civil marriages limited their religious freedom in s. 2(a). 65 Marriage Commissioners, supra note 29 at para 142. 66 Richard Moon, supra note 57. See also Richard Moon, “Conscientious Objection in Canada: Pragmatic Accommodation and Principled Adjudication” (2018) 7:2 Oxford JL & Religion 274-295. 67 Marriage Commissioners, supra note 29 at para 142. 68 Rex Ahdar, “Solemnisation of Same-sex Marriage and Religious Freedom” (2014) 16:3 Ecclesiastical LJ 283 at 296. 252 while refusing to perform x is discriminatory and expresses condemnation of those seeking x.”69
In his view, Smith J.A. overemphasizes “the external appearance of conduct at the expense of the internal attitude of the moral agent.”70 Ahdar gives the example of a person who eats pork: it may “well be a neutral act for most citizens but for certain persons it violates deeply held religious beliefs.”71 Smith J.A. second-guesses whether performing a same-sex marriage causes the commissioner to violate her conscience. While it may “be hard to comprehend how undertaking a secular task can be freighted” with religious or moral significance, what constitutes “mundane activity” for some will be a matter of moral import for others.72
Justification
So far, the religious freedom claims of marriage commissioners in Canada have failed, mainly on the basis that any limit of the freedom is justified. In Marriage Commissioners,
Richards J.A. emphasized the distinction between holding and manifesting a religious belief, as well as the idea that holding the belief is closer to the core of religious freedom. He noted that allowing objecting religious commissioners to not perform same-sex marriages caters to aspects of their religious freedom that “do not lie at the heart of s. 2(a)”.73 The aspects of religious freedom that are at stake in these cases “do not in any way concern the freedom of the commissioners to hold the religious beliefs they choose or to worship as they wish”, but only the
“ability of marriage commissioners to act on their beliefs in the world at large.”74
69 Ibid. 70 Ibid. 71 Ibid at 297. 72 Ibid. 73 Marriage Commissioners, supra note 29 at 93. 74 Ibid. Arguably, this point – and others made within the justification analysis in Marriage Commissioners – could also have been relevant to the issue of whether there was a breach of s. 2(a). 253
Setting aside the arguable fallacy that religious freedom is more concerned with holding beliefs than manifesting them, the statements of Richards J.A. are less forceful in relation to freedom of conscience. The distinction between belief and conduct does not govern this freedom as cleanly as it does freedom of religion. I argued in Chapter 3, based on the ordinary understanding of “conscience”, that freedom of conscience pertains to moral conduct. On this view, it is difficult to demonstrate that requiring an objecting commissioner to perform same-sex marriages does not “lie at the heart” of this freedom. I have not encountered the argument that requiring a physician to perform an abortion does not “lie at the heart” of s. 2(a). The basic idea in healthcare is that requiring a physician to perform a procedure that she considers immoral unjustifiably limits her freedom of conscience.
That said, from the perspective of the objector, it is reasonable to suggest that a physician’s refusal to perform an abortion avoids more harm than a marriage commissioner’s refusal to perform a same-sex marriage. It could be said that while performing an abortion ends a life (or at least a potential life), performing a same-sex marriage harms a particular idea of marriage. The argument, in short, is that the commissioner harms an idea of marriage, not marriage itself – and that even if the commissioner harms marriage, the harm is less grave compared to an abortion. This argument touches on a debate that is beyond the scope of this thesis: whether certain goods are fundamental to human flourishing and, if so, whether or not a hierarchy exists among that set of goods. For the purposes of this thesis, even if the harm avoided in the healthcare context is objectively more severe than the harm avoided in the marriage context, I submit that the harm to marriage sits at a level that calls for thoughtful consideration of the legal claim made by persons who conscientiously object in this context. 254
In my view, the claim of objecting commissioners will stand or fall on whether the state can justify requiring commissioners to marry every couple that is eligible for – and subsequently requests – civil marriage. The state may encounter some difficulty in showing that the refusal to accommodate objecting commissioners minimally impairs freedom of conscience in light of the policy objectives at stake. One of the policy objectives in requiring commissioners to provide civil marriage to any eligible couple is to ensure the efficient and equitable delivery of civil marriage to the public. Bearing in mind that the state need not choose the policy measure that is the least infringing of the Charter right (as long as the measure it chooses falls within a range of reasonable options), is there a reasonable alternative to requiring all commissioners to perform all civil marriages that is less harmful to freedom of conscience and still achieves that objective?
In many cases, the answer seems to be yes. One alternative is a single-entry point model, which resembles the care coordination service in the healthcare context. Richard J.A. discussed that model in Marriage Commissioners. The province of Saskatchewan conceded that a single- entry point system for civil marriage might avoid the conflict between marriage commissioners who refuse to perform same-sex marriages and same-sex couples who want to be married. All couples that want to be married civilly – whether opposite- or same-sex – would apply to a government office that coordinates the delivery of civil marriage. The details of that application, if it reveals the sex of the applicants, would allow the office to identify whether the couple is same-sex or opposite-sex. The office would then assign the couple a willing marriage commissioner and thereby accommodate freedom of conscience without sacrificing access to civil marriage. An alternative to the single-entry point model is informal accommodation behind the scenes, as occurred in some provinces after the Civil Marriage Act was enacted. The precise nature of that accommodation and whether it continues to any extent today is unclear. 255
In Marriage Commissioners, the government of Saskatchewan could not identify how a marriage coordination service would create undue hardship in respect of cost or logistics.
Delivering civil marriage appears far less complicated than delivering healthcare. Geoffrey
Trotter notes that “if the state can accommodate the right of conscientious objection of doctors in the highly integrated public medical system”, it can “also accommodate the right of conscience of marriage commissioners in the unbundled-service marriage industry.”75 In provinces where objecting commissioners have been accommodated informally, I have encountered no evidence of problems relating to access arising from conscientious objection to same-sex marriage.
In considering undue hardship, there is also theoretically no limit to the number of marriage commissioners that the state can licence. Commissioners are not salaried; they are paid by the marriage. It would not, in other words, be more expensive for the state to licence more commissioners if ever there were a lack of commissioners who are willing to perform same-sex marriages. Such a deficit is, from all appearances, not an issue in Canada and there is no reason to expect a change. A poll from 2015 – ten years after same-sex marriage arrived across Canada
– reveals that 70% of Canadians support same-sex marriage.76 Since then, that number has only increased.77 There is no apparent risk of a shortage of marriage commissioners in Canada who will perform civil marriage ceremonies for same-sex couples.
There is little debate over the feasibility of accommodating objecting commissioners.
Bruce Ryder submits that “whether a public official is entitled to a religious or conscientious
75 Geoffrey Trotter, “The Right to Decline Performance of Same-Sex Civil Marriages: The Duty to Accommodate Public Servants – A Response to Professor Bruce MacDougall” (2007) 70:2 Sask L Rev 365 at 386. 76 Ashley Csanady, “Canadians still support same-sex marriage ten years in, but even more of us are coming around: poll”, National Post (2 July 2015), online:
He seems to make this prediction without recourse to a marriage coordination service.
Even if the state can easily and cheaply accommodate objecting marriage commissioners,
I submit that its refusal to accommodate them does not violate the minimal impairment step of the section 1 analysis. I submit that, on this aspect of the analysis, the refusal is justified for three reasons. First, the refusal to accommodate is justified by the combined effect of legitimate state authority and the distinctness of civil marriage. In Canada, the state is expressly authorized to determine who has the capacity to marry in the eyes of the law – to marry for civil purposes – and to determine how the benefit of civil marriage is delivered to the public. Civil marriage is distinct from religious marriage. In certain provinces, this distinct institution is made accessible to the public only by officials that exist solely for the purpose of providing it.
The second justification for refusing to accommodate objecting marriage commissioners is the essence of their role. In Chapter 4, which discussed limits to freedom of conscience, I proposed that it would be reasonable to limit this freedom where its exercise denies the essence of a profession. I submit that this principle applies here. Where the state delivers civil marriage by way of a specialized office, it is justified to require that all individuals who take up that office deliver civil marriage to all eligible couples. The essence of the role of marriage commissioner is
78 Ryder, supra note 7 at 191-192. 79 Ibid. While Ryder focuses on religious freedom, his conclusion would seem to apply equally in relation to respecting both freedom of conscience and equal access to civil marriage. 257 to deliver civil marriage to those who may receive this benefit. Where a commissioner cannot perform an otherwise valid civil marriage for moral or other reasons, she must resign. While the commissioner may disagree with the state on what should count as a civil marriage and what should not, the Canadian Constitution expressly empowers the federal government to decide that matter. For that reason, as well as the voluntary decision of a person to work in this capacity, the role of civil marriage commissioner is not the appropriate site for a person to express disagreement on how the state has handled marriage. If a marriage commissioner does not want to collaborate with what she considers to be a moral mistake committed by the state in relation to marriage, I submit that she must resign.
The duty of an employer (including the state) to accommodate its employees up to the point that the employer experiences undue hardship does not require the employer to change the fundamental nature of the job.80 Accommodation is meant “to ensure that an employee who is able to work can do so.”81 The purpose of the duty to accommodate, however, is “not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.”82 To allow a civil marriage commissioner who conscientiously refuses to perform certain civil marriages to opt-out of those ceremonies would
“completely alter the essence of the contract of employment”, which is to deliver civil marriage.
Scholars that favour accommodation for objecting commissioners – such as Bruce Ryder,
Lorraine Lafferty, and Geoffrey Trotter – do not confront the fact that such accommodation
80 Discourse on the duty to accommodate is usually articulated in respect of the employer-employee relationship. Yet it is accepted that marriage commissioners are independent contractors: see Marriage Commissioners at para 128. Nonetheless, litigation concerning these officials has considered, without hesitation, the duty to accommodate. 81 Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para 14, [2008] 2 SCR 561. 82 Ibid at 15. 258 allows commissioners to negate the essence of their role: solemnizing civil marriages.83 This blind spot on what conscientious objection in this context means for the nature of the role may be a product of the historical (and enduring) overlap between religious marriage and civil marriage in Canada that I discussed earlier. While the introduction of same-sex marriage substantially widened the gap between the institutions of civil marriage and religious marriage overnight, a gap between these two institutions already existed by virtue of Parliament’s interventions in relation to prohibited degrees of marriage and divorce.
The third justification for denying accommodation to objecting commissioners is harm to the couple. While it is arguable that refusals to perform same-sex marriages due to the moral judgment that marriage is only opposite-sex do not target sexual orientation, accommodating this form of conscientious objection may send the message, as the Supreme Court of Canada put it in
Vriend, that “discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination.”84 Even if accommodation for objecting commissioners (such as a marriage coordination service) does not impede access to civil marriage and avoids hurtful face-to-face or over-the-phone refusals, accommodation in this context may still be perceived by many as “tantamount to condoning or even encouraging discrimination against lesbians and gay men” in other societal contexts – especially given that some objecting commissioners base their refusals on sexual orientation, not on the nature of marriage.85 Vriend dealt with the omission of “sexual orientation” as a prohibited ground of discrimination in Alberta’s human rights code. That omission, the Court said, signals to society that “it is permissible, and perhaps even acceptable, to discriminate against individuals on the
83 See also Ahdar, supra note 68; Trotter, supra note 75; and Lafferty, supra note 30. 84 Vriend v Alberta, [1998] 1 SCR 493 at para 100, 156 DLR (4th) 385 [Vriend]. 85 Ibid. 259 basis of their sexual orientation.”86 The Court emphasized the “psychological harm” that the omission may inflict: “Fear from discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem.”87
There are, admittedly, important differences between Vriend and the case of marriage commissioners. In Vriend, Alberta’s human rights code failed to bar discrimination on the basis of sexual orientation. In the case of commissioners, the guarantee of equality in the Charter (on the basis of sexual orientation) rendered the opposite-sex definition of marriage at common law unconstitutional and prompted the expansion of civil marriage to same-sex couples. There is also, in the case of commissioners, a competing claim under the Charter. Section 2(a) is what would lead the state to accommodate commissioners. There was a deliberate – and perhaps invidious – decision by the state to exclude in Vriend. The decision to accommodate commissioners is by all accounts not inspired by an exclusionary objective or agenda.
Despite these differences, accommodating objecting commissioners sends a marginalizing, exclusionary, and demeaning message: opposite-sex couples are worthy of being served by all marriage commissioners, but same-sex couples are not. This message would be especially hurtful if couples are questioned to determine if they are same-sex – a necessity in order to operate a marriage coordination service. In the case of Kevin Kisilowsky, a commissioner in Manitoba, the Manitoba Court of Queen’s Bench accepted that, in the context of a single-entry point model, the “necessary personal questioning of couples by provincial officials would be discriminatory.”88 The Court presumed that “couples would be questioned on their race, religious beliefs, and sexual orientation, in order to be referred to a suitable marriage
86 Ibid at para 101. 87 Ibid at para 102. 88 Kisilowsky MBQB, supra note 35 at para 53. 260 commissioner.”89 Even if the questioning occurs through an application form, it is unnecessary for the state to know – for the purposes of determining eligibility for civil marriage – whether the couple that is applying is same- or opposite-sex. All that is required to grant civil marriage is the knowledge that the union is between two persons who are not prohibited by law from marrying.
Accommodation in the context of delivering civil marriage also betrays the objective of expanding civil marriage to include same-sex couples: to give equal recognition to their relationships vis-à-vis opposite-sex couples. While there is no legal right in Canada to not be offended, accommodating commissioners goes beyond mere offense. It inflicts harm. The problem with accommodation is not that the state is endorsing the views of the objecting commissioners – a concept that “must be treated with considerable caution”90 in any event. The problem is that, by accommodating commissioners who do not wish to provide civil marriage to same-sex couples, the state is telling these couples that they are less worthy of receiving a public benefit – for which they are eligible – on equal terms as other couples. State action of this sort harms the dignity of the persons who form the couple. Here, accommodation also does indirectly what cannot be done directly. If the distinctness of civil marriage means that marriage commissioners cannot negate their role openly, they should not be allowed to do so privately. 91
What does my conclusion on marriage commissioners mean for other public servants that conscientiously refuse to deal with work tasks that offend their moral judgment on marriage? Are court officials who profess that marriage is only opposite-sex, permanent, and exclusive
89 Ibid. 90 Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423 at para 184. 91 It may be more persuasive to argue that the state may (not must) accommodate marriage commissioners who were already employed when same-sex marriage arrived in Canada. For these commissioners, the employer – not the employee – altered the essence of the contract of employment. Using contract law principles, a fundamental and unilateral change in the terms of employment would require some sort of consideration (for example, accommodating employees who cannot abide by that change due to a moral conviction on marriage). Even so, this argument would not negate the harm to same-sex couples occasioned by refusals to solemnize their unions. 261 permitted to recuse themselves from divorce proceedings? What about adoption proceedings for same-sex couples? This question cannot be fully answered here. Given that court officials do not work exclusively on certain files or issues (whereas civil marriage commissioners exist solely to perform civil marriages), the case for accommodation seems stronger. The same could be said for judges who hold the same moral judgment, although their oath of office – to faithfully execute the functions of a judge – may militate against accommodation.92
The case of court officials – and other public servants that do not deal primarily or exclusively with work that engages their moral judgments – brings to mind Moore v British
Columbia (Ministry of Social Services).93 That case concerned a public servant who processed applications by citizens for financial assistance from the state. She successfully challenged the decision of her employer (the province of British Columbia) to dismiss her on account of her refusal to process a person’s application for financial assistance for an abortion. The decision- maker concluded that the employer had discriminated against the employee on the basis of her religion (Catholicism) and that the employer failed to demonstrate that accommodating the employee (by reassigning abortion files to willing employees) would entail undue hardship.
V. Wedding Service Providers
Apart from marriage commissioners, conscientious objection by persons in the private sector to involvement in same-sex marriage is also controversial. This type of conscientious objection is most often committed by persons who provide services for weddings – such as bakers, florists, and photographers. In June 2018, the US Supreme Court ruled in favour of Jack
92 Oaths of Office Regulations, CRC, c 1242. Taking an oath of office may impose a moral duty on the officeholder to perform all of the regular responsibilities of the office. If the officeholder cannot carry out an aspect of the role, even if the reason is the dictates of his conscience, he must resign. 93 Moore v British Columbia (Ministry of Social Services), [1992] BCCHRD No 15. 262
Phillips, a baker from Colorado who refused to make a wedding cake for Charlie Craig and
David Mullins.94 The Colorado Civil Rights Commission found that Phillips had violated
Colorado’s anti-discrimination law by refusing to make the cake. The Commission ordered
Phillips, inter alia, to stop discriminating against same-sex couples. The decisive factor that led the Supreme Court to rule for Phillips was the Commission’s overt hostility and bias toward his religious views: it went so far as to liken them to support for slavery and the Holocaust.95 The decision of the Supreme Court did not address whether Phillips could have lawfully refused to bake the cake had the state not exhibited hostility to his religious beliefs and failed to act as a neutral decisionmaker. A few weeks after that ruling, the Court sent a similar case involving a florist in Washington named Barronelle Stutzman back to a lower court for reconsideration in light of the outcome for Phillips.96 Stutzman’s case does not appear to feature the same sort of state hostility toward religion that was present in the baker’s case. Elsewhere, the UK Supreme
Court ruled in 2018 on a case concerning the refusal of a bakery to make a non-wedding cake decorated with the slogan “Support Gay Marriage”.97 The lower courts in that lawsuit ruled against the bakery on equality and discrimination grounds, but the Supreme Court concluded that the refusal was not discriminatory. While the customer who ordered the cake was gay, the bakery
“would have refused to supply this particular cake to anyone, whatever their personal characteristics.”98 The Court held that the refusal related not to the sexual orientation of the customer but to the “message he wanted to be iced on the cake.”99 In Canada, since same-sex
94 Masterpiece Cakeshop v Colorado Civil Rights Commission, 584 US ___, 138 S Ct 1719 (2018) [Masterpiece Cakeshop cited to US]. 95 Ibid at 14. 96 Chris Riotta, “Supreme Court throws out ruling for florist who refused to serve same-sex couple”, The Independent (25 June 2018), online: < https://www.independent.co.uk/news/world/americas/us-politics/supreme- court-florist-case-gay-same-sex-wedding-colorado-bakery-cake-ruling-a8416251.html>. 97 Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland), [2018] UKSC 49. 98 Ibid at para 62. 99 Ibid at para 23. 263 marriage became available nationwide in 2005, there have been no court decisions concerning refusals by business owners to provide services for weddings of same-sex couples.100
It may be instinctual to conclude that service providers cannot refuse wedding services to same-sex couples if commissioners cannot refuse them civil marriage. I reach that conclusion because of harm – but this case is less straightforward, in my view, than the case of marriage commissioners. Marriage commissioners deliver civil marriage as the state defines it; persons in the private sector do not. It is one thing to say that a person who takes up a role to deliver civil marriage must do so without conditions. It is more problematic, at least at first blush, to require an individual who has not taken up that role to support – by her actions and through her profession – a vision of marriage that contravenes her conscience or religion. The jurisprudence on s. 2(a) of the Charter is critical of state action that compels persons to act in manners contrary to their conscience or religion. In Big M Drug Mart, the first s. 2(a) case decided by the Supreme
Court of Canada, the Court held that a law banning commerce on the Christian sabbath “works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians” by binding “all to a sectarian Christian ideal.”101 Coercive state action of this sort strikes at the heart of freedom – a concept that, as the Court described it, can “primarily be characterized by the absence of coercion or constraint.”102 Coercion in this context refers not only to “direct commands to act or refrain from acting on pain of sanction”, but also to “indirect forms of control which determine or limit alternative courses of conduct” available to individuals.103
Laws that prohibit discrimination in commerce on the basis of sexual orientation – without exempting conscientious refusals to involvement in same-sex weddings – have the effect
100 The closest to such a case is Smith and Chymyshyn v Knights of Columbus and others, 2005 BCHRT 544. 101 R v Big M Drug Mart, [1985] 1 SCR 295 at 337, 18 DLR (4th) 321 [Big M Drug Mart]. 102 Ibid at 336. 103 Ibid at 336-337. 264 of requiring, on pain of legal sanction, some individuals to violate their conscience by materially supporting a vision of marriage that they deem inimical to the common good.104 In Barnette, the
US Supreme Court described the principle that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein” as a “fixed star” in the American “constitutional constellation”.105 The Supreme Court of Canada has endorsed this statement.106 Given the status of marriage as a matter of conscience (at least for some individuals) and the reasonable – but fundamental – disagreements over marriage, I submit that the state should not prescribe what is orthodox on this topic. The Civil Marriage Act follows this approach: it says that it is not against the public interest to express a diversity of views on marriage. Where the state stifles that diversity, it may violate its duty to not impose uniformity in matters of conscience and religion.
In Canada, this duty of neutrality “flows from” freedom of conscience and religion in the
Charter.107 The state may ultimately be justified in requiring citizens to embrace same-sex marriage in the marketplace in light of principles such as equality, discrimination, and dignity.
Be that as it may, the stakes remain high for citizens who experience difficulty or even a crisis of conscience in making that embrace. For some persons, it may mean giving up a cherished line of work. Aside from potential financial hardship, there are also identity and dignity concerns.
Individuals spend a large portion of their lives at work. There is a strong link between dignity
104 This point raises an interesting parallel to the legal dispute in which tobacco companies in Canada challenged the laws which required them to advertise the health dangers of tobacco on the basis that the companies did not believe in these dangers. The companies argued that the laws unjustifiably limited their freedom of expression in s. 2(b) of the Charter: see RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, 127 DLR (4th) 1. 105 West Virginia State Board of Education v Barnette, 319 US 624 at 642, 63 S Ct 1178 (1943). 106 Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139 at 174, 77 DLR (4th) 385. 107 Mouvement laïque Québécois v Saguenay (City), 2015 SCC 16 at para 15, [2015] 2 SCR 3. 265 and pursuing a chosen profession. In many cases, owing to their talents or aptitudes, individuals view their profession as a calling – not just a job.
The baker and florist in the United States generally provide their goods and services to
LGBTQ customers. Wedding products are the exception. Jack Phillips refused to make a wedding cake for a same-sex couple, but he offered to sell them other baked goods.108 Barronelle
Stutzman had for years served the persons forming the same-sex couple that requested flowers for their wedding, and she knew of their sexual orientation.109 It is unfair to casually accuse these individuals of bigotry or animus toward LGBTQ persons – or even invidious discrimination.
They do not necessarily refuse to associate with others due to their sexual orientation. The provision of goods and services by Phillips and Stutzman to LGBTQ persons that do not concern marriage suggests that sexual orientation is not the driving factor behind their refusals to provide wedding services (if it is a factor at all). The driving factor may be a moral conviction on what marriage is and the benefits that marriage provides to society and the common good. Were a heterosexual person (rather than the same-sex couple) to visit such a baker or florist to request wedding services on behalf of the couple, the response of the baker or florist would presumably be the same.110 There are surely persons who deny services to LGBTQ persons for invidious reasons that target their sexual orientation. I need not address those service providers here, for it seems certain that their claims will fail if the claims of Phillips and Stutzman fail.
The prospect of allowing conscientious objection in relation to wedding celebrations requires the drawing of lines. Can the florist who refuses to make bouquets for weddings of
108 Masterpiece Cakeshop, supra note 94 at 3 (Gorsuch J). 109 Robert K Vischer, “Why the courts were wrong to rule against a florist who declined service to a gay wedding”, America Magazine (28 February 2017), online:
It is the moment, regardless of how one defines marriage, when a new reality is created.
Weddings have a significance that “general commercial services, like serving burgers and driving taxis, do not.”111 The decision of Phillips and Stutzman to serve LGBTQ persons for purposes unrelated to weddings reinforces this point. Stutzman refused to provide flowers for the same-sex wedding of Rob Ingersoll, one of her longstanding customers. She had served Rob and his partner, Curt Freed, on several occasions – including birthdays and other personal events.
Given her conviction on marriage, however, she could not provide flowers for their wedding.112
Conscientious refusals to serve LGBTQ persons (due to a moral judgment on marriage) in contexts unrelated to weddings are unreasonable, at the very least, because these refusals do not maintain that moral judgment. The link between refusing to serve dinner to a married same-sex couple (or providing flowers for a wedding anniversary) and manifesting the moral judgment that marriage is only opposite-sex is not apparent – certainly not to the same degree as refusing to facilitate that couple’s wedding celebration, the moment when the marriage becomes a reality.113
Some may argue that the principle concerning the essence of the profession applies to the baker, florist, and photographer as it does to marriage commissioners – and therefore defeats
111 Thomas C Berg, “What Same-Sex-Marriage and Religious-Liberty Claims Have in Common” (2010) 5:2 Northwestern JL & Soc Policy 206 at 233. 112 Vischer, supra note 109. 113 Even if I am wrong on this point, the ultimate basis for my rejection of conscientious objection to providing services for same-sex weddings – injury to the dignity of same-sex couples – would equally apply in these scenarios. 267 their claims. Surely the essence of what it means to be a baker is to bake, so refusing to make a wedding cake offends the principle. That being said, it is inaccurate to portray all baked goods as equal in terms of significance or meaning. Selling a batch of brownies to a hungry customer with a sweet tooth does not have the same significance as creating a custom cake for a graduation, anniversary, or wedding. Moreover, the objecting baker (or florist or photographer), unlike the pacifist soldier or the unwilling executioner, does not object to his job in its entirety. He does not object to baking, floristry, or photography in general.114
The baker negates the essence of his profession – to bake – by refusing to make a wedding cake for a same-sex couple. Yet it is understandable that he may be reluctant to bake for an event or cause that he deems immoral. In a Canadian case, a court held that the owner of a printing company could, on account of his religious freedom in s. 2(a) of the Charter, refuse to
“print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.”115 While the facts of that case differ from that of the baker, the point is that the service provider’s refusal would be justified even though it would negate the essence of his profession (ie, printing). The bottom line, in my view, is that the principle concerning the essence of the profession – a principle that aids the determination of whether accommodating conscientious objection is reasonable – has some purchase in relation to the objecting baker, but it does not tip the scales on the legal outcome.
Thomas Berg argues that, in most cases, service providers who do not want to be involved in same-sex weddings should be allowed to live accordingly. He argues that they must
114 With respect to negating the essence of a job, the objecting marriage commissioner appears to be a closer case to the soldier or executioner. His statutory role is to deliver civil marriage as the state defines it, but he objects to doing so. While the commissioner is prepared to solemnize certain civil marriages (while the executioner is not prepared to perform any executions), the objecting marriage commissioner believes that his narrowly prescribed function cooperates with immorality. This is not the case, I would suggest, for the baker, florist, or photographer. 115 Brockie v Brillinger (No. 2), 2002 CanLII 63866 at para 59, 22 DLR (4th) 174 (Ont Sup Ct J Div Ct). 268 yield if their refusals cause undue hardship: for example, if the only baker in a town refuses to make a wedding cake for a same-sex couple. Berg, writing from the vantage point of religious freedom but with references to conscience, submits that the “strongest features of the case for same-sex civil marriage also make a strong case for significant religious-liberty protections for dissenters.”116 Identity is an example: both same-sex couples and dissenters “claim that their conduct stems from commitments central to their identity – love and fidelity to a life partner, faithfulness to the moral norms of God – and that they should be able to live these commitments in a public way, touching all aspects of their lives.”117 Berg proposes that the state should allow both sides to “live and let live” unless conscientious refusals create undue hardship for couples.
I am sympathetic to the claims of Jack Phillips and Barronelle Stutzman. If these individuals conscientiously believe that marriage is uniquely opposite-sex, lending their talents to a same-sex wedding amounts to material participation with an event, laden with meaning and significance, to which they are morally opposed. I submit, in other words, that requiring them to provide their services to a same-sex wedding would limit their freedom of conscience. While the inconvenience and harm to couples caused by their refusals is real, the time and expense in finding willing providers, it seems, is often minimal given the size of the wedding industry. It appears, at least in countries such as the USA and Canada, that few service providers do not wish to assist at same-sex weddings.118 The strong support for same-sex marriage in Canada today lends credence to that point. For individuals such as Phillips and Stutzman, forcing a choice between violating conscience and giving up certain forms of work is no small step. This choice
116 Berg, supra note 111 at 207. 117 Ibid. 118 Nathan B Oman, “Doux commerce, religion, and the limits of antidiscrimination law” (2017) Ind LJ 92:2 693- 733. At 693, Oman writes: “Aggressive antidiscrimination laws may be necessary to ensure meaningful access to the market, but where instances of religious discrimination are uncommon, there is no compelling justification for punishing idiosyncratic religious behavior. Indeed, doing so will tend to degrade the value of markets.” 269 engages their dignity. By all accounts, their refusals do not stem from animus or bigotry. They stem, rather, from a sincere and defensible moral judgment on what marriage is and the benefits provided by marriage (so understood) to the common good. I agree with Andrew Koppelman that people like Phillips and Stutzman “are not homophobic bigots who want to hurt gay people.”119 All of that being said, I also believe that their claims should be denied.
I arrive at this conclusion for a reason that justified the denial of accommodation to marriage commissioners: injury to the dignity of LGBTQ persons. Earlier, I quoted the Supreme
Court of Canada in Vriend on the message that is sent when the states enables treatment that marginalizes LGBTQ persons. Allowing refusals of wedding services to same-sex couples sends the exclusionary and demeaning message that same-sex couples are inferior to opposite-sex couples – a message that the recognition of same-sex marriage sought to remedy. These refusals tell same-sex couples that their relationships are not worthy of the recognition and respect that other couples receive. It also signals to society at large that discrimination against LGBTQ persons is acceptable. While persons like Phillips and Stutzman do not refuse to serve LGBTQ persons in general, the refusal to serve them in relation to their weddings has a pernicious effect because of the continuing vulnerability of the LGBTQ community. The historical marginalization and mistreatment of the LGBTQ community and the harm that has been and continues to be inflicted on it is crucially relevant to this discussion.
It is profoundly hurtful for a same-sex couple – for any couple – to experience rejection of their relationship. It is reasonable for a couple that is entitled by law to be married to expect to receive services that customarily form part of marriage celebrations without fear of rejection.
These couples are not advancing a political agenda or an ideological cause. They simply wish to
119 Andrew Koppelman, “A Zombie in the Supreme Court: The Elane Photography Cert Denial” (2016) 7 Alabama Civil Rights & Civil Liberties L Rev 77 at 92. 270 celebrate their union in marriage. In the case of Jack Phillips, Justice Anthony Kennedy noted that future cases of this sort – in which state hostility towards religious belief is not a factor – must “be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”120 I do not see how refusals to provide wedding services can ever avoid subjecting
LGBTQ persons to indignities. In my view, the inevitability of that harm – one that is deeply painful and wounding – justifies the denial of conscientious objection here. Persons in the wedding industry must, in my view, either provide their services to all couples who can marry or not work in that industry. This conclusion reflects my proposal in Chapter 4 that the state may limit freedom of conscience where its exercise inflicts harm or injures dignity.
The harm to same-sex couples that are refused wedding services does not depend on the fact that the law says that these couples can be married. The harm flows from the rejection of their relationship, regardless of what the law says their relationship can or cannot become.
Turning again to Jack Phillips, Colorado did not recognize same-sex marriage at the time that he refused to make the cake for the same-sex couple. In that case, Colorado’s anti-discrimination statute intervened. The US Supreme Court noted this state of affairs in its decision but did not suggest that the content of Colorado’s marriage law would have diminished the hurt experienced by the couple. That being said, it seems reasonable to posit that a couple that is eligible for civil marriage would experience greater shock and hurt upon being refused services that customarily form part of a marriage celebration than a couple that is not eligible. I suspect, in other words, that most romantically committed trios would be less offended by such a refusal today than a same-sex couple would be. The influence of law on culture is at work here.
120 Masterpiece Cakeshop, supra note 94 at 18. 271
While Phillips and Stutzman may base their refusals to provide wedding services for same-sex couples on “decent and honorable religious or philosophical premises” that support their view on marriage, the impact of their refusals on the dignity of LGBTQ persons is real.
Their refusals do not seek to injure the dignity of others, but that injury is inevitable. In the judicial decision that opened the door to same-sex marriage in Canada, the Ontario Court of
Appeal held that the “dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage.”121 Exclusion from the institution of marriage, the Court held, “perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships.”122 Denying same-sex couples services for their weddings inflicts a similar kind of harm – even if persons who refuse to provide the services are neither bigoted nor inspired by animus but refuse, rather, based on a defensible moral judgment on what sort of interpersonal union counts as marital. In Marriage Commissioners, the Saskatchewan
Court of Appeal discussed the harm to LGBTQ persons when marriage commissioners refuse them civil marriage. Smith J.A. noted the “affront to dignity, and the perpetuation of social and political prejudice and negative stereo-typing that such refusals would cause.”123 I submit that these observations equally apply to refusals to provide wedding services to same-sex couples.
Comparing the two case studies in this thesis, some might question the allowance of conscientious refusals in healthcare (up to referrals) and the disallowance of conscientious refusals in relation to same-sex marriage. Is it not the case that a woman who wants an abortion or a patient that requests assisted death is subjected to the same degree of indignity or harm as
121 Halpern, supra note 18 at para 108. 122 Ibid at para 107. 123 Marriage Commissioners, supra note 29 at para 107. 272 the same-sex couple who wants a cake or flowers for their wedding – if not more? If so, how are the conclusions in the case studies reconcilable?
In my view, the distinction that explains the differing conclusions in the case studies is the gravity of the harm and indignity for the conscientious objector and others. The competing claims of indignity and harm are more equal in relation to healthcare than marriage. It is arguable that a pregnant woman or a dying patient experiences indignity or harm when she is refused an abortion or assisted death. That said, the conscientious refusal of a physician to participate in these services is a refusal, from the perspective of the physician, to kill. While a physician may make that refusal to avoid self-harm, his primary concern is likely to avoid fatal harm and grave indignity to the unborn child or the patient. The calculus for the refusal – the inviolability and intrinsic dignity of human life, from conception to natural death – does not change depending on the circumstances that led to a pregnancy or the symptoms of a terminal disease.
With respect, the stakes are nowhere near as high for the baker or florist. Making a wedding cake or providing flowers for a wedding is not a matter of life and death. It seems reasonable to suggest that the harm and indignity suffered by the baker or florist is objectively less severe than that which is suffered by the physician (and the foetus in the case of abortion) – and not only because of the subject matter. There is also, it seems, a distinction between these cases in terms of complicity with perceived immorality. The nexus between the acts of the baker and same-sex marriage is more remote than the nexus between the acts of the physician and abortion or assisted death, even if the act is a referral rather than performance.
Conclusion
This case study explored two sites of conscientious objection based on the view that marriage is uniquely the spousal union of one man and one woman: (i) civil marriage 273 commissioners who refuse to solemnize same-sex civil marriages and (ii) individuals in the private sector who refuse to provide services for the weddings of same-sex couples.
In both contexts I concluded that freedom of conscience is limited where the state denies these forms of conscientious objection. I also concluded that, in both cases, the limit on freedom of conscience is justified. In the case of marriage commissioners, conscientious objection negates the essence of the role: to deliver the distinct institution of civil marriage as the state defines it.
Allowing conscientious objection in the context of civil marriage is not on-the-job accommodation. It is a fundamental alteration of the job itself. Aside from the negation of the role, measures that allow marriage commissioners to avoid the performance of same-sex civil marriages send the harmful message that same-sex couples are not worthy of being served by all marriage commissioners, whereas opposite-sex couples are. State action of this sort is exclusionary and marginalizing. While I have greater sympathy for individuals in the private sector who refuse to provide services to same-sex weddings if their conduct reveals that they are not targeting the sexual orientation of LGBTQ persons, I conclude that these refusals should not be accommodated on account of the profound harm that they can inflict on LGBTQ persons.
Despite my conclusions, I am concerned by what seems to be a problematic blurring of the lines between persons who disagree with same-sex marriage – based on a reasoned and defensible moral conclusion on what marriage is – and persons who view LGBTQ persons as second-class citizens or worse. The first group withholds services based on their view of marriage, while the second group withholds services based on the sexual orientation of customers. That subtle yet significant nuance, I suspect, is often lost. Bruce MacDougall rejects the accommodation of objecting marriage commissioners (and presumably wedding service providers) on the basis that such accommodation is “simply supportive of religious hostility to 274 homosexuals, i.e. homophobia.”124 This statement is overbroad: it paints all who reject same-sex marriage with the same brush. It is unjust, in my view, to label persons such as Jack Phillips or
Barronelle Stutzman as homophobic. The evidence in their cases refutes that label.
There are surely persons who reject same-sex marriage out of fear or hatred of LGBTQ persons. Such bigotry must be condemned. But many who reject same-sex marriage do so on defensible and rational grounds. There are people of good will who reject same-sex marriage and other unions (such as polygamy) for reasons that do not target sexual orientation. The reasons, rather, concern marriage: what it is and what it is made for. In Obergefell, the ruling that affirmed a constitutional right to same-sex marriage in the USA, Justice Anthony Kennedy noted that many “who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises”.125 Even if courts reject conscientious objection that is inspired by the traditional view of marriage, care must be taken so that objectors are not excluded – simply because of that view – from public life. Going forward, this balance may at times be hard to strike. Adopting the observation of Justice Kennedy, in my view, is a good start.
124 MacDougall, supra note 59 at 358. 125 Obergefell, supra note 38 at 19. 275
CONCLUSION
Breaking the Ice
The story of freedom of conscience is, relative to many other human rights, at its nascence. Initial attempts to understand a human right inevitably create the monumental challenge of applying it to countless scenarios. In Canada, understandings of the most litigated
Charter rights and freedoms – such as religious freedom and equality – continue to be refined.
This thesis only broke the ice on freedom of conscience. The waters beneath are deep and vast.
This thesis sought to achieve – or at least make progress towards – two broad objectives.
First, to offer an account of what freedom of conscience protects, why it matters, and when it can be limited. Second, to apply this account to current sites of controversy for freedom of conscience: namely conscientious objection in relation to healthcare and marriage.
I proposed that freedom of conscience protects the freedom of individuals to live in alignment with their moral commitments, whether those commitments stem from religious or non-religious sources. Due to the inescapable relationship between conscience and conduct, freedom of conscience is about action. The freedom to hold beliefs, moral or otherwise, is guaranteed by other human rights such as freedom of thought, opinion, or belief. These human rights, like freedom of conscience, have also been neglected by jurists.
Moral commitments – matters of conscience – refer to moral principles and convictions.
A detailed account of what constitutes a moral issue exceeded the scope of this thesis, but morality is instinctually engaged by issues such as life, death, harm, and fundamental personal decisions. When a person betrays her moral commitments, she inevitably compromises her integrity and identity. This can be a harmful experience. I proposed that integrity and identity are the primary reasons why freedom of conscience makes the cut for bills of rights. 276
Freedom of conscience can only play a meaningful role in liberal democracies if it is disentangled from freedom of religion. Litigants, lawyers, and judges must take up this task. I argued, essentially in light of the ordinary meaning of conscience, that freedom of conscience is distinct from freedom of religion. That distinctness has largely been subsumed by freedom of religion to date, and that will almost certainly continue unless jurists identify a division of labour between these two human rights. The court of first instance in the healthcare referral case in
Ontario ruled on religious freedom and expressly refused to consider freedom of conscience. If the disentanglement of the two interests in s. 2(a) does not occur, freedom of conscience will continue to be a “forgotten fundamental” in the Charter.
Lessons Learned and Future Research
The study of freedom of conscience in this thesis relied on sources from a wide range of fields and disciplines. Despite the diversity of sources, their teachings on key issues such as the nature of conscience and the interests that conscience safeguards are largely uniform. Some may find it remarkable that the breadth of these sources would nevertheless yield a rather stable consensus on these issues. Others may attribute this outcome to a near-inescapable intuition on the broad contours of conscience that flows from its universality and often involuntary operation in human beings. Bearing in mind the varied sources that undergird this thesis, the research outcomes appear to reveal that the essential features of conscience are uncontested.
Perhaps the greatest limitation of the method chosen for this thesis is the absence of detailed firsthand accounts of conscientious objectors. Given the broad neglect of freedom of conscience in human rights discourse, this thesis aimed to offer a theory of this human right and to apply it to present sites of controversy for freedom of conscience. Collection and analysis of firsthand accounts would have added insight and texture, but would have made for a thesis trying 277 to accomplish too much. Compensation for the absence of these accounts was made by reference to psychological and psychiatric scholarship on the repercussions of violating conscience as well as biographical, historical, and journalistic accounts of conscientious objectors. I believe there is much to be gained from exploring the untold stories of today’s conscientious objectors.
As for future research on freedom of conscience, I would flag three avenues of inquiry.
The first relates to the major limitation of this thesis: a deeper study of the harm that flows from violations of conscience. The nature of that harm – often termed moral injury or distress – remains nebulous. Outside of the military context, there appears to be few studies of how individuals who have violated conscience have been adversely affected by those violations.
Conducting interviews of conscientious objectors with the aim of ascertaining the harm they sustained by violating their conscience would enrich understandings of why freedom of conscience is worth enshrining in a bill of rights and contribute to the analysis of when it is legitimate to limit this human right.
Second, I would suggest a comparative study of how conscience and related concepts are understood – with a focus on comparing Western and Eastern traditions. This thesis drew almost exclusively from the Western tradition because it has been the most influential on the topics of conscience and freedom of conscience. Chapter 2 recounted how the word “conscience” was chosen for the Universal Declaration on Human Rights to bridge Eastern and Western understandings of moral capacity. Conscience may not be a true bridging concept, however, as conscience did not reconcile words from the Western and Eastern traditions. Rather, conscience is the Western word. Be that as it may, what aspects of the Western and Eastern understandings of moral capacity within human beings could not be bridged? What, if anything, do these aspects teach us about the human right that is known today as freedom of conscience? 278
Third, I would recommend empirical studies of sympathy for secular versus religious conscience. I continue to wonder whether sympathy for freedom of conscience is influenced by the religiosity of claimants. Discomfort with public expressions of religion in Western societies seems to be increasing, such that sympathy for the legal claims of persons who want to publicly express their faith is decreasing.1 What if those legal claims are described in terms of conscience rather than religion? Rex Ahdar thinks there is a difference: in his view, nobody “can be against conscience; but plenty of people are hostile to religion”.2 The tendency of many persons to link conscience and religion – and the statistical reality that most conscientious claimants are religious – may lead to little difference at the end of the day in terms of sympathy for litigants who invoke (religious) conscience. As for non-religious litigants, I suspect that most persons would pause longer to consider their claims. In practical terms, there may be more sympathy for an atheist doctor who refuses to perform abortions than for a religious doctor who refuses to perform them – even if the moral calculus is the same for both.
The Fate of the Overarching Claim
This thesis focused on state interference with freedom of conscience that, through the use of legal sanctions, pressures citizens to act in ways that violate their conscience. The case studies on healthcare and marriage featured examples of this sort of state interference. The marriage commissioner who refuses to solemnize the union of a same-sex couple must resign. The baker
1 This trend is observable in Quebec, the intellectual home of this thesis. Apart from much jurisprudence emanating from Quebec on religious expression in the public square, recent legislative efforts by the province to restrict the ability of public servants to wear religious symbols is an example of this trend: see Andy Riga, “Breaking down Quebec parties’ positions on religious symbols, crucifix”, Montreal Gazette (12 October 2018), online:
I advanced, as an overarching claim of this thesis, that freedom of conscience should be robustly protected because of its substance and rationale. This position, however, did not become a trump card in favour of this human right. In the case study on same-sex marriage, the status of civil marriage as a distinct civil institution to religious marriage rendered conscientious refusals by marriage commissioners to solemnize same-sex unions unreasonable. As for conscientious refusals to provide wedding services to same-sex couples, injury to the dignity of LGBTQ persons justifies the choice not to accommodate this form of conscientious objection. Comparing marriage commissioners to service providers, the differing degrees of proximity to the subject of the moral judgment – marriage – also played a role. In terms of complicity with what is considered immoral, the baker and florist appear to have a weaker claim than the commissioner.
In general, freedom of conscience will not spark as much controversy where accommodating the claimant is inexpensive or does not implicate a clash of interests or rights.
The case of Jack Maurice, the Canadian inmate who requested a vegetarian diet on account of a moral conviction, is an example. Conscientious objection to military conscription may also fall under this category, especially where there is no shortage of individuals to take the place of the conscientious objectors. As the case studies on marriage and healthcare reveal, the difficult cases for freedom of conscience are those where the interests or rights of others are engaged, even if accommodating conscience will cost little. For marriage commissioners, steps to accommodate conscientious objection – such as a single-entry point system for civil marriage – would not be expensive or infeasible. Other factors, such as the reasons for civil marriage and the essence of the role of a marriage commissioner, defeated conscientious objection in this context. 280
Comparing the two case studies, my conclusion to allow the exercise of freedom of conscience in healthcare (up to conscientious refusals to refer) and to deny it in relation to same- sex marriage may reflect the notion that issues such as abortion and assisted death are matters of public conscience – issues in respect of which it is acceptable to manifest a diversity of views in the public square. Healthcare may be a matter of public conscience because of its subject matter: life, death, and the human body. These stakes seem to influence the view that the interests engaged by instances of conscientious objection in healthcare – for patients and workers alike – are too delicate for the state to pick sides. The statement of Justice Anthony Kennedy of the US
Supreme Court in a case on abortion comes to mind: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”3 Healthcare, because of its substance, is a context in which conscience has been afforded ample room to breathe.
Marriage, meanwhile, has not emerged as a matter of public conscience – at least in
Canada. Certain provinces refused to accommodate marriage commissioners from the moment that same-sex marriage arrived. There has been no litigation in Canada on conscientious refusals by secular entities to provide services for same-sex wedding celebrations. The Canadian law of
2005 that defined civil marriage as the union of two persons includes protective provisions for supporters of traditional marriage,4 but the steady increase in support for same-sex marriage since 2005 has seemingly diluted the potency of statutory provisions such as these. The recent
3 Planned Parenthood of Southeastern Pa v Casey, 505 US 833 at 851, 112 S Ct 2791 (1992). 4 Civil Marriage Act, SC 2005, c 33, ss 3, 3.1. 281 denials to accredit a law school at a private Christian university due to a term in the university’s code of conduct banning sex outside of traditional marriage may be evidence of this impact.5
There are likely several reasons why marriage has not become a matter of public conscience. One may be that, in Canada, marriage is a matter of state authority. The Canadian
Constitution empowers the federal government to determine who can marry and the provincial governments to structure how marriage is delivered to the public. Another reason may be that marriage debates have been decided on the altars of equality and discrimination rather than the philosophical question of what marriage is and is not. The judicial decisions in Canada that led to same-sex marriage followed this framing of the debate. In the United States, marriage equality was the rallying cry for supporters of same-sex marriage. Marriage equality presumes that a committed same-sex union is marital. Given that many conscientious objectors to same-sex marriage ground their objection on a judgment of what marriage is and is not, it is unsurprising that these objections have been met with little sympathy in public discourse and litigation.
Looking forward, it will be interesting to see if challenges to the prevailing understanding of marriage and lifelong intimate relationships as a union of only two persons will give rise to an issue of public conscience.6 In 2011, a Canadian court – in a case on the constitutionality of the crime of polygamy – called monogamous marriage a “fundamental value in Western society from the earliest of times.”7 Given the road that many countries have travelled on the legal definition of marriage, there is arguably little to no logical basis for restricting it to two-person unions. In the last fifty years or so, the number of traditional marital norms enshrined in the
5 Law Society of British Columbia v Trinity Western University, 2018 SCC 32; Trinity Western University v Law Society of Upper Canada, 2018 SCC 33. 6 Jean-Paul Boyd, “Polyamory in Canada: Research on an Emerging Family Structure”, The Vanier Institute of the Family (11 April 2017), online: < http://vanierinstitute.ca/polyamory-in-canada-research-on-an-emerging-family- structure/>. 7 Reference re Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 at para 1350, 279 CCC (3d) 1. 282 marriage laws of liberal democracies has steadily diminished. The norm of monogamy, which remains present in these laws, clashes with viewing marriage as a deep emotional or romantic bond. While some might say that you can only form such a bond with one person at a time, people in polyamorous relationships likely disagree. Some might argue that redefining marriage
(or public benefits offered to married persons) to embrace polyamory represents social progress.
Others might argue that it draws nearer to emptying marriage of meaning. All sides likely agree that marriage is a fundamental societal institution that is meant to serve the common good. But if it becomes harder to pinpoint where that institution ends and something else begins, I suspect it will be become increasingly reasonable to ask why the state is in the marriage business at all.8
Other Neglected Human Rights Concepts
The universal neglect of freedom of conscience in human rights discourse and jurisprudence inspired this thesis. In seeking to remedy this neglect, it became apparent that other concepts which routinely appear in the arena of human rights have also been undertheorized or misunderstood. Among these concepts, two stand out: dignity and discrimination.
Human dignity is often identified as a basis for human rights and as a reason for limiting human rights. Preambles to human rights instruments such as the Universal Declaration of
Human Rights emphasize the first idea. Recent scholarship and judicial decisions, however, seem to emphasize the second: the capacity of dignity, as a freestanding principle, to limit the exercise of human rights. Dignity loomed large in the litigation that opened the door to physician-assisted death in Canada. Dignity sits at the heart of the decision of the US Supreme
Court that constitutionalized same-sex marriage. The idea that human dignity is a source of
8 See, for example, Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Law Commission of Canada, 21 December 2001). 283 human rights – that dignity “finds expression in almost every right and freedom guaranteed in the Charter” – is, I would suggest, less prominent today.9 In 1985, during the early days of the
Charter, the Supreme Court of Canada noted the “centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity”.10 This thesis proposed, with the help of concepts such as identity and integrity, that to deny freedom of conscience is to deny in large measure what it means to be human – an idea that finds support in the notion that everyone has a conscience. The relationship between conscience and human dignity made brief appearances in Chapters 3 and 4 of this thesis. It merits further investigation.
References to dignity are common in human rights litigation, but there has been little focus on its substance. The Supreme Court of Canada has made only a handful of statements on the meaning of dignity.11 This gap in human rights jurisprudence is problematic if dignity is a foundation for human rights and if indignity is a reason to limit the exercise of human rights.
One of the inspirations for this thesis is the idea that evaluating claims under freedom of conscience with a poor understanding of this human right risks undervaluing it and the experiences of claimants. The same goes for dignity. Further reflection on what dignity means and its relationship to human rights is necessary. The Supreme Court of Canada has noted that there exist “different conceptions of what human dignity means”, but the work of giving precision to human dignity for the purposes of human rights remains incomplete.12
9 R v Morgentaler, [1988] 1 SCR 30 at 166, 44 DLR (4th) 385. 10 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346, 18 DLR (4th) 321. 11 See, for example, Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1 [Law]; Kindler v Canada (Minister of Justice), [1991] 2 SCR 779, 84 DLR (4th) 438. The decision in Law ushered in a period (of nearly a decade) in which dignity played a prominent role in the legal test for equality in s. 15 of the Charter. During that period, the study of dignity in relation to this Charter right intensified. For a helpful treatment of this topic, see Thomas MJ Bateman, “Human Dignity’s False Start in The Supreme Court of Canada: Equality Rights and The Canadian Charter of Rights and Freedoms” (2012) 16:4 Intl JHR 577-597. 12 Law, supra note 11 at para 53. 284
This thesis also revealed a lack of precision on the issue of discrimination. I think it is fair to say that, in everyday conversation, the word “discrimination” is used with increasing casualness. This treatment of discrimination may be creeping into the law. In healthcare, for example, doctors who refuse to provide abortions are accused of discrimination on the basis of sex. A careful analysis revealed that the doctor refuses to provide abortions because she perceives the foetus to be a human being. The sex of the person bearing the foetus is not a factor in the refusal. The instinct to impute discriminatory intent to persons who invoke conscience – or at least to quickly shift from suspecting to asserting indirect or effects-based discrimination – is troubling given the legal ramifications of discrimination. This thesis reveals a need to sharpen understandings of discrimination, a concept which is central to human rights codes and which limits the exercise of individual freedom. Invidious discrimination, properly understood, should be condemned. The case studies reinforce a truth that, at times, is forgotten: actions that create adverse or unpleasant outcomes for individuals are not inherently discriminatory.
Are there scenarios in which discriminatory exercises of conscience should be allowed?13
The case of Scott Brockie and Ray Brillinger is a rare instance in which a Canadian court has considered this issue.14 Brockie was the president of Imaging Excellence, a commercial printer in
Toronto. Brillinger was the president the Canadian Lesbian and Gay Archives. The Archives asked Imaging to print official letterhead, envelopes, and business cards, but Brockie refused due to his religious belief that homosexuality is sinful. Brockie testified that Imaging serves LGBTQ
13 In Canada, human rights codes – being statutes enacted by legislatures – must comply with the Charter. Canadian courts have not often considered the claim that human rights codes unjustifiably limit Charter rights. Most of the codes predate the Charter. These codes do not expressly balance the exercise of Charter rights by individuals in their profession against the goal of combatting discrimination This is so even in the human rights codes of Saskatchewan and Quebec, each of which features a bill of rights (that guarantees human rights such as freedom of conscience and religion) as well as anti-discrimination provisions. 14 Brockie v Brillinger (No. 2), 2002 CanLII 63866, 22 DLR (4th) 174 (Ont Sup Ct J Div Ct) [Brockie cited to CanLII]. 285 customers, but he refused to provide services that, in his view, promote homosexuality. The
Archives sued under Ontario’s Human Rights Code, arguing that Brockie discriminated against the Archives because of sexual orientation. The Ontario Human Rights Commission agreed: it ordered Imaging to provide the services and to pay $5,000 in damages.
Brockie appealed, arguing that the Human Rights Code unjustifiably limited his freedom of religion in the Charter. The Divisional Court of Ontario upheld the decision below, with one caveat. The Court concluded that the “objectives under the anti-discrimination provisions of the
Code must be balanced against Mr. Brockie’s right to freedom of religion and conscience.”15 The
Court varied the decision so that Brockie would not be required to “print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.”16 The Court offered an example: material that “conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs”.17
The broader issue in Brockie is whether individuals may refuse in commercial contexts to endorse a cause or an event that betrays their moral convictions. What if the organization that requested printing services was an anti-abortion advocacy group with a religious affiliation?
What if, instead of opposing abortion, the group opposed same-sex marriage? If the printer holds the moral conviction that abortion or same-sex marriage should be lawful, what should happen if that group requests printing services for a public rally? Unless the exemption that was judicially carved out in Brockie takes hold, the printer would, by refusing to provide printing services, commit unlawful discrimination on the basis of religion. I find it disquieting that this business owner would have to choose between lending her support – and her professional talents – to a
15 Ibid at para 57. 16 Ibid at para 59. 17 Ibid at para 57. 286 cause with which she morally disagrees and facing punishment under human rights codes (and even resigning). Conscience-based exemptions in human rights codes merit deeper consideration.
Conscience, Humility, and Progress
When limits to freedom of conscience are proposed, I suggest that humility is in order.
Societies do well to acknowledge that mistakes have been made in the past – and might be made today. While this thesis focused on the value of conscience to individuals, it should not be forgotten that, on many occasions, individual exercises of conscience have transformed societies.
History is “replete with examples where numbers of humans have been led by conscience to recognize and fight injustice, inhumanity, and evil.”18 Their actions are often termed civil disobedience, but conscience was often their inspiration. As Martin Luther King Jr. once said, there “comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right.”19
Humility is a virtue for wielders of public authority because human beings are fallible.
We may sincerely perceive a certain cause or idea to be good and true – and it may well be. For persons such as Reverend King, Nelson Mandela, and Mahatma Gandhi, the causes and ideas they opposed were widely thought to be legitimate and even righteous. Thanks to their exercises of conscience, today we recognize those causes and ideas as instances of evil and injustice.
At times, private conscience must yield to public authority. Even so, the state should take care to not devalue the exercise of conscience. The humility that enables the recognition of a society’s moral failings is unlikely to emerge if recourse to conscience is denigrated or if public
18 Richard Haigh & Peter Bowal, “Whistleblowing and Freedom of Conscience: Towards a New Legal Analysis” (2012) 35:1 Dal LJ 89 at 91. 19 Martin Luther King Jr, “A Proper Sense of Priorities” (a speech given in Washington, DC on February 6, 1968), online: < http://www.aavw.org/special_features/speeches_speech_king04.html>. 287 authority is considered to always extinguish conscience. History teaches that conscience can instigate fundamental social change, for the better. Freedom of conscience not only safeguards moral convictions – it also promotes moral growth, for individuals and societies alike.
Conscience, though inherently individual, is vital to the common good. In order to realize societies that are just and equitable, it is safe to say that freedom of conscience is nothing short of indispensable.
288
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Ford v Quebec, [1988] 2 SCR 712, 54 DLR (4th) 577.
Francescutti v Vancouver (City), 2017 BCCA 242.
Frank v Carson, [1865] OJ 147, 15 UCCP 135 (Upp Can Ct Com Pleas).
Gosselin v Quebec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429. 293
Greenlees v Attorney-General for Canada, [1946] SCR 462, [1947] 1 DLR 798.
Halpern v Canada (Attorney General) (2006), 65 OR (3d) 161, 225 DLR (4th) 539 (CA).
Hyde v Hyde (1866), LR 1 P & D 130.
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In re Marriage Laws, [1912] SCR 132, 6 DLR 588.
Jensen (Re) [1976] 2 FC 665, FCJ No 72 (Citizenship App Ct).
Kempling v British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169.
Kindler v Canada (Minister of Justice), [1991] 2 SCR 779, 84 DLR (4th) 438.
Kisilowsky v Her Majesty the Queen, 2016 MBQB 224.
Kisilowsky v Manitoba, 2018 MBCA 10.
Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1.
Law Society of British Columbia v Trinity Western University, 2018 SCC 32.
Levy (Re), (1981) 131 DLR (3d) 15, NSJ No 555 (SC).
Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613.
M v H, [1999] 2 SCR 3, 171 DLR (4th) 577.
Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3, 327 DLR (4th) 669.
Maurice v Canada (Attorney General), 2002 FCT 69, [2002] FCJ No 72.
McAteer v Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1.
McDiarmid Lumber Ltd v God’s Lake First Nation, 2006 SCC 58, [2006] 2 SCR 846.
McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161.
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Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360. 294
Moore v British Columbia (Ministry of Social Services), [1992] BCCHRD No 15.
Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3.
Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256
Nichols v MJ, 2009 SKQB 299, 339 Sask R 35.
Nova Scotia (Attorney General) v Walsh, 2002 SCC 83, [2002] 4 SCR 325.
NW v Canada (Attorney General), 2004 SKQB 434, 246 DLR (4th) 345.
Ont Human Rights Comm v Simpson-Sears, [1985] 2 SCR 536, 23 DLR (4th) 321.
Prior v Canada, [1988] 2 FC 371, FCJ No 107 (FCTD).
Prior v Canada, [1989] FCJ No 903, 2 CTC 280 (CA).
Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 SCR 789.
Re BC Motor Vehicle Act, [1985] 2 SCR 486, 24 DLR (4th) 536.
Re Civil Service Association Ontario (Inc) and Anderson et al (1976), 9 OR (2d) 341, [1975] OJ No 2403 (HCJ).
Re Cromer and British Columbia Teachers’ Federation (1986), 29 DLR (4th) 641, 4 BCLR (2d) 273 (CA).
Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 SCR 669.
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313, 38 DLR (4th) 161
Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 2 SCR 698.
Reference re Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, 279 CCC (3d) 1.
Reference Re Securities Act, 2011 SCC 66, [2011] 3 SCR 837.
R v Anthony, 2006 BCPC 523.
R v Advance Cutting & Coring Ltd, 2001 SCC 70, [2001] 3 SCR 209.
R v Bannerman (1966), 48 CR 110 at 138, 55 WWR 257 (Man CA). 295
R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 18 DLR (4th) 321.
R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411.
R v Edwards Books and Art Ltd, [1986] 2 SCR 713, 35 DLR (4th) 1.
R v Finta, [1994] 1 SCR 701, 112 DLR (4th) 513.
R v Greyeyes, [1997] 2 SCR 825, 148 DLR (4th) 634.
R v Kapp, 2008 SCC 41, [2008] 2 SCR 483.
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R v Lafaver, 2009 SKPC 42.
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R v Mabior, 2012 SCC 47, [2012] 2 SCR 584.
R v M(C) (1995), 23 OR (3d) 629, 41 CR (4th) 134 (CA).
R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.
R v NS, 2012 SCC 72, [2012] 3 SCR 726.
R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200.
R v Prior, [1989] SCCA No 441 (SCC).
R v Stewart, [1944] 3 DLR 331, 81 CCC 349 (BCCA).
R v Vice Media Canada Inc, 2018 SCC 53.
R v Videoflicks Ltd, (1984) 48 OR (2d) 395, OJ No 3379 (CA).
R v Zundel, [1992] 2 SCR 731, 95 DLR (4th) 202.
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 154 DLR (4th) 193 [Rizzo].
RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, 127 DLR (4th) 1.
296
Roach v Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FC 406, FCJ No 33
Robertson and Rosetanni v The Queen, [1963] SCR 651, 41 DLR (2d) 485.
Ross v New Brunswick School District No 15, [1996] 1 SCR 825, 133 DLR (4th) 1.
Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11, [2013] 1 SCR 467.
Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522.
SL v Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235.
Smith and Chymyshyn v Knights of Columbus and others, 2005 BCHRT 544.
Stewart v Elk Valley Coal Corp, 2017 SCC 30, [2017] 1 SCR 591.
Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551.
The Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579.
Trinity Western University v College of Teachers, 2001 SCC 31, [2001] 1 SCR 772.
Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423.
Trinity Western University v Law Society of Upper Canada, 2018 SCC 33.
Trustees of Westwood Congregation of Jehovah’s Witnesses v City of Coquitlam, 2006 BCSC 1208, 272 DLR (4th) 675.
Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385.
Walter et al v Attorney General of Alberta et al, [1969] SCR 383, 3 DLR (3d) 1.
JURISPRUDENCE: OTHER
Bayatyan v Armenia [GC], No 23459/03, [2011] ECHR 1095, (2012) 54 EHRR 15.
Edwards v Canada (Attorney General), [1930] AC 124, 1 DLR 98 (JCPC).
Kokkinakis v Greece (1993), ECHR (Ser A) 20, (1994) 17 EHRR 397.
Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland), [2018] UKSC 49. 297
Marsh v Chambers, 463 US 683 at 812, 103 S Ct 3330 (1983).
Masterpiece Cakeshop v Colorado Civil Rights Commission, 584 US ___, 138 S Ct 1719 (2018).
Maynard v Hill, 125 US 190, 8 S Ct 723 (1888).
Obergefell v Hodges, 576 US ____, 135 S Ct 2584 (2015).
Pichon and Sajous v France (Dec), Application No 49853/99, Council of Europe: European Court of Human Rights (2 October 2001).
Planned Parenthood of Southeastern Pa v Casey, 505 US 833 at 851, 112 S Ct 2791 (1992).
UN Human Rights Committee, Dr JP v Canada, Comm No 446/1991, IHRL 1720 (UNHRC 1991) (7 November 1991).
UN Human Rights Committee, Westerman v Netherlands, Comm No 682/1996, (2000) IHRR 362 (3 November 1999).
UN Human Rights Committee, Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea, Comm Nos 1321/2004 and 1322/2004, (2006) 14 IHRR 389 (3 November 2006).
West Virginia State Board of Education v Barnette, 319 US 624, 63 S Ct 1178 (1943)
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Frankfurt, Harry, The Reasons of Love (Princeton: Princeton University Press 2004).
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Greene, Ian, The Charter of Rights (Toronto: Lorimer, 1989). 299
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Moon, Richard, Freedom of Conscience and Religion (Toronto: Irwin Law, 2014).
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Reardon, Terry, Winston Churchill and Mackenzie King: So Similar, So Different (Toronto: Dundurn, 2012).
Shapiro, Ian & Robert Adams, eds, Integrity and Conscience: Nomos XL (New York: NYU Press, 1998).
Shaw, Amy, Crisis of Conscience: Conscientious Objection in Canada during the First World War (Vancouver: UBC Press, 2009).
Shklar, Judith N, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1964).
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Sorabji, Richard, Moral Conscience Throughout The Ages: Fifth Century BCE to the Present (Chicago: University of Chicago Press, 2014).
Stevenson, Michael D, Canada’s Greatest Wartime Muddle: National Selective Service and the Mobilization of Human Resources during World War II (Montreal: McGill-Queen’s University Press, 2001).
Stevenson, Robert Louis, Strange Case of Dr. Jekyll and Mr. Hyde (London: Longmans, Green, and Co, 1886).
Strohm, Paul, Conscience: A Very Short Introduction (Oxford: Oxford University Press, 2011). Sullivan, Ruth, Statutory Interpretation, 2nd ed (Toronto: Irwin Law, 2007).
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Taylor, Charles, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989).
Tebbit, Mark, The Philosophy of Law: An Encyclopedia (New York: Routledge, 2013).
Turiel, Elliot, The Development of Social Knowledge: Morality and Convention (Cambridge: Cambridge University Press, 1983).
Waiser, William A, Park Prisoners: The Untold Of Western Canada’s National Parks, 1915- 1946 (Saskatoon: Fifth House Publishers, 1995).
Vischer, Robert K, Conscience and the Common Good Reclaiming the Space Between Person and State (Cambridge: Cambridge University Press, 2010).
Waldron, Mary Anne, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada (Toronto: University of Toronto Press, 2013).
Watt, Helen, ed, Cooperation, Complicity & Conscience: Problems in Healthcare, Science, Law and Public Policy (London: The Linacre Centre, 2006).
Wegemer, Gerard & Stephen W Smith, A Thomas More Source Book (Washington DC: Catholic University of America Press, 2004).
Wicclair, Mark R, Conscientious Objection in Health Care: An Ethical Analysis (Cambridge: Cambridge University Press, 2011).
Xavier, NS, Fulfillment Using Real Conscience: Practical Guide for Psychological and Spiritual Wellness (Bloomington: AuthorHouse, 2009).
SECONDARY MATERIAL: ARTICLES
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Blustein, Jeffrey, “Doing What the Patient Orders: Maintaining Integrity in The Doctor-Patient Relationship” (1993) 7:4 Bioethics 289.
Calhoun, Cheshire, “Standing for Something” (1995) 92:5 J Philosophy 235.
Campbell, Richmond, “What is Moral Judgment”? (2007) 104:7 J Philosophy 321.
Cere, Daniel, “Canadian Conjugal Mosaic: From Multiculturalism to Multi-Conjugalism?” in Joel A Nichols, ed, Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and The Boundaries of Civil Law and Religion (New York: Cambridge University Press 2012) 284.
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Cotler, Irwin, “Marriage in Canada – Evolution or Revolution” (2006) 44:1 Fam Ct Rev 60.
Cowley, Christopher, “A Defence of Conscientious Objection in Medicine: A Reply to Schuklenk and Savulescu” (2016) 30:5 Bioethics 358.
Dane, Perry, “Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities” (1980) 90:2 Yale LJ 350.
Doerks, Marco, “Conscientious Objectors and The Marrying Kind: Rights and Rites in Dutch Public Discourse on Marriage Registrars with Conscientious Objections Against Conducting Same-Sex Weddings” (2017) 23:3 Theology & Sexuality 209. 303
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Domingo, Rafael, “Restoring Freedom of Conscience” (2015) 30:2 JL & Religion 176.
Downie, Jocelyn, Carolyn McLeod & Jacquelyn Shaw, “Moving Forward with a Clear Conscience: A Model Conscientious Objection Policy for Canadian Colleges of Physicians and Surgeons” (2013) 21:3 Health L Rev 28.
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Epp, Jared, “Justified Coercion: A Case Comment on the Marriage Commissioner Reference” (2012) 75:1 Sask L Rev 97.
Epstein, Elizabeth G, & Anne B Hamric, “Moral Distress, Moral Residue, and the Crescendo Effect” (2009) 20:4 J Clinical Ethics 330, accessed via US National Library of Medicine (National Institutes of Health), online:
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Fiala, Christian & Joyce H Arthur, “There is no defence for ‘Conscientious objection’ in reproductive health” (2017) 216 European J Obstetrics & Gynecology & Reproductive Biology 254-258.
Fiala, Christian et al, “Yes we can! Successful examples of disallowing ‘conscientious objection’ in reproductive healthcare” (2016) 21:3 European J Contraception & Reproductive Health Care 201.
Feldman, Noah, “The Intellectual Origins of the Establishment Clause” (2002) 77:2 NYUL Rev 346.
Frankfurt, Harry, “Reply to Susan Wolf”, in Sarah Buss & Lee Overton, eds, Contours of Agency: Essays on Themes from Harry Frankfurt (Cambridge: MIT Press, 2002) 245.
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Gilbert, Daphne “Let Conscience Be Thy Guide (But Not My Guide): Physicians and the Duty to Refer” (2017) 10:2 McGill JL & Health 47.
Glenn, Andrea et al, “Moral Identity in Psychopathy” (2010) 5:7 Judgment & Decision Making 497.
Greenawalt, Kent, “Individual Conscience And How It Should Be Treated” (2016) 31:3 JL & Religion 306.
Greenawalt, Kent, “The Significance of Conscience” (2010) 47 San Diego L Rev 901.
Haigh, Richard & Peter Bowal, “Whistleblowing and Freedom of Conscience: Towards a New Legal Analysis” (2012) 35:1 Dal LJ 89.
Hambler, Andrew, “Recognising a Right to ‘Conscientiously Object’ for Registrars whose Religious Beliefs are Incompatible with their Duty to Conduct Same-Sex Civil Partnerships” (2012) 7:3 Religion & Human Rights 157.
Hartnett, Edward A, “Catholic Judges and Cooperation in Sin” (2006) 4:2 U St Thomas LJ 221.
Healey, Robynne R, “Quakers and Mennonites and the Great War” in Gordon L Heath, ed, Canadian Churches and the First World War (Cambridge: Lutterworth Press, 2014) 218.
Heino, Anna et al, “Conscientious objection and induced abortion in Europe” (2013) 13 European J of Contraception & Reproductive Health Care 231-233.
Hill Jr, TE, “Four conceptions of conscience” in Ian Shapiro and Robert Adams, eds, Integrity and Conscience: Nomos XL (New York: NYU Press, 1998) 13.
Jeffrey, Brooke, “The Evolution of Human Rights Protection in Canada” in Gordon DiGiacomo, ed, Human Rights: Current Issues and Controversies (Toronto: University of Toronto Press, 2016) 3.
Kislowicz, Howard, Richard Haigh & Adrienne Ng, “Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom” (2011) 48:3 Alta L Rev 679.
Koppelman, Andrew, “A Zombie in the Supreme Court: The Elane Photography Cert Denial” (2016) 7 Alabama Civil Rights & Civil Liberties L Rev 77. 305
Koppelman, Andrew, “Conscience, Volitional Necessity and Religious Exemptions” (2009) 15 Leg Theory 215.
Lafferty, Lorraine P, “Religion, Sexual Orientation and the State: Can Public Officials Refuse to Perform Same-Sex Marriage?” (2006) 85:2 Can Bar Rev 287.
Lamb, Christina, “Conscientious Objection: Understanding the Right of Conscience in Health and Healthcare Practice” (2016) 22:1 New Bioethics 33.
Laabs, Carolyn, “Perceptions of Moral Integrity: Contradictions in Need of Explanation” (2011) 18:3 Nursing Ethics 431.
Leckey, Robert, “Profane Matrimony” (2006) 21:2 CJLS 1.
Lenta, Patrick, “Freedom of Conscience and Personal Integrity” (2016) 29:2 Ratio Juris 246.
MacDougall, Bruce, “Refusing to Officiate at Same-Sex Civil Marriages” (2006) 69:2 Sask L Rev 351.
MacDougall, Bruce et al, “Conscientious Objection to Creating Same-Sex Unions: An International Analysis” (2012) 1:1 Can J Human Rights 127.
Macklem, Timothy, “Faith as a Secular Value” (2000) 45 McGill LJ 1.
Marshall, Claire, “The Spread of Conscience Clause Legislation” (2013) 39:2 Human Rights 15.
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McGann, Michael, “Equal Treatment and Exemptions: Cultural Commitments and Expensive Tastes” (2012) 38:1 Soc Theory & Practice 1.
McGuire, Martin C, “On Conscience” (1963) 60:10 J Philosophy 253.
McCrudden, Christopher, “Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights” in Susanna Mancini & Michel Rosenfeld, eds, The Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality (Cambridge: Cambridge University Press, 2018) 414.
Minerva, Francesca, “Conscientious Objection in Italy” (2015) 41 J Medical Ethics 170.
Méthot, Mélanie, “Finding the Ordinary in the Extraordinary: Marriage Norms and Bigamy in Canada” in Julia Moses, ed, Marriage, Law and Modernity: Global Histories (New York: Bloomsbury, 2017) 187.
Montgomery, Jonathan, “Conscientious Objection: Personal and Professional Ethics in the Public Square” (2015) 23:2 Med L Rev 200. 306
Moon, Richard, “Conscientious Objection by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages” in Benjamin L Berger & Richard Moon, eds, Religion and the Exercise of Public Authority (Portland: Hart Publishing, 2016) 149.
Moon, Richard, “Conscientious Objection in Canada: Pragmatic Accommodation and Principled Adjudication” (2018) 7:2 Oxford JL & Religion 274.
Moon, Richard “Religious Commitment and Identity” (2005) 29:2 SCLR 201.
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Newman, Dwight, “Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms” (2019) 85 SCLR ____ (forthcoming).
Oman, Nathan B, “Doux commerce, religion, and the limits of antidiscrimination law” (2017) Ind LJ 92:2 693.
Perry, Michael J, “Freedom of Conscience as Religious and Moral Freedom” (2014) 29:1 JL & Religion 124.
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Quinlan, Michael, “When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales” (2017) 2016:4 BYU L Rev 1237.
Ryder, Bruce, “Physicians' Rights to Conscientious Objection” in Benjamin L Berger & Richard Moon, eds, Religion and the Exercise of Public Authority (Oxford: Hart Publishing, 2016) 127.
Ryder, Bruce, “State Neutrality and Freedom of Conscience and Religion” (2005) 29 SCLR 169.
Savulescu, Julian, “Conscientious Objection in Medicine” (2006) 332:7536 Brit Med J 294.
Savulescu, Julian & Udo Schuklenk, “Doctors Have No Right to Refuse Medical Assistance in Dying, Abortion or Contraception” (2017) 31:3 Bioethics 162.
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