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A Burl on the Living Tree: Freedom of Conscience in Section 2(A) of the Canadian Charter of Rights and Freedoms

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A Burl on the Living Tree: Freedom of Conscience in Section 2(A) of the Canadian Charter of Rights and Freedoms A BURL ON THE LIVING TREE: FREEDOM OF CONSCIENCE IN SECTION 2(A) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS By Richard A. Haigh A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Richard A. Haigh, 2012 A Burl on the Living Tree: Freedom of Conscience in Section 2(a) of the Canadian Charter of Rights and Freedoms Richard A. Haigh Doctor of Juridical Science Faculty of Law University of Toronto 2012 ABSTRACT The Charter grants to everyone, in s.2(a), the “fundamental …freedom of conscience and religion.” Yet the interaction between the two operative terms, “religion” and “conscience” remains largely unexplored. What, for example, is meant by “conscience”? By conscience in contradistinction to religion? Does s. 2(a) make a distinction between the state’s respect for religion and that of conscience? Can freedom of conscience be elevated to a freestanding right? Can conduct motivated by conscience be exempted from general laws in the way that some religious conduct has? Should the state take action to ensure conscience is protected? After more than 25 years of Charter commentary and jurisprudence, these remain deep questions, only partially answered. This project considers the possibility of building a case for an independent and robust “conscience” branch of s. 2(a), which will protect a broader range of freedoms, at the same time as allowing other disputes to be cast in more neutral tones (by taking them out of religious-based language, where possible) and allowing still others more room to develop in a more analytical and principled basis (as purely “religious” disputes more commonly ii associated with religious norms). In my view, there is, despite some opposition, sufficient justification in history, theory and doctrine to establish a separate and independent concept of freedom of conscience. At the same time, freedom of religion will always remain relevant as an acknowledgement of the distinct communal aspects of religion. Thus, a broad approach to freedom of conscience could include individual religious claims where the religious belief is based on a matter of conscience, and those conscience-based claims that lack a communal dimension, such as the prisoner who cannot eat meat or the whistleblower who feels compelled to report a supervisor. By exploring the origins of conscience and religious freedom, the basis behind the inclusion of conscience in many human rights documents, and the need for a theory that encompasses both as equal and complementary aspects of liberty, the dissertation sets out some possible ways in which freedom of conscience could be invoked and present a potential framework for assessing constitutional freedom of conscience claims. iii Acknowledgments No project like this is ever done without the help of many others. I am greatly indebted to my supervisor, Professor (as he was at the start) and now Dean Lorne Sossin, who seems to be able to accomplish inhuman amounts of work whilst always maintaining an amazingly upbeat and humorous equanimity; my Committee members, Jennifer Nedelsky and Bruce Ryder (who is also a great colleague) for their enduring wisdom and helpful advice; and the examining committee members Ian Lee and Richard Moon, Richard in particular who provided a very detailed critique that I know will be extremely useful as this project goes forward. I also had the assistance of a number of friends through the course of this doctorate: Neil Foley, who provided research assistance for me as a faculty member prior to embarking on this doctorate; Jesse Rosenberg, who first mooted the idea of an expanded freedom of conscience with me; and Barry Bussey – a former student of mine and doctoral candidate at Osgoode – gave me some excellent feedback, and information on conscientious objectors. Four students from my 2008/09 State and Citizen class were instrumental in enabling me to get things done: Christine Hakim, who translated a very difficult French article for me; Daniel del Gobbo, who also developed an interest in conscience and shared his thoughts with me; Ryan Edmonds, who always seemed to have my project in mind, by sending me news clips and interesting cases, without favour or reward; and Adrienne Ng, whose sound advice, support and assistance – despite being sent on a few wild goose chases that led to nothing – cannot adequately be put in words. As well, Ladan Mehranvar and Mai Taha – colleagues in the doctoral program at the U of T, provided interesting discussions and help with SSHRC applications. Howie Kislowicz, another colleague in the doctoral program and a co-instructor with me in a Constitutional law course, was always on the lookout for material for me, and was a great sounding board for some theories about religion and conscience. Rivka Birkan, another former student, read a near-final version and made some very helpful comments. Finally, a special recognition should go to some of my longest standing friends: the “Breakfast Club” of Roger Beattie, Ted Fujisawa, Craig Middaugh and Rod Northey – who never fail to share their invaluable opinions with me; Brett Christen and Angela Rae, who loaned me their house at “Frog Pond” for a week of writing; Curtis Gillespie, who gave me a writer’s and layperson’s careful eye and wise comments; Denise Oliver, who kept her eyes open for new iv cases on conscience; Michael J. Sobkin, whose clarity of thought is often unmatched; Arthur Wilson, whose persistence can be infectious; Allison Thornton, who kept me honest in working through practical and strategic matters related to constitutional claims; and Ken Jepson, whose careful reading and editing deserves more than the one or two dinners that I was able to provide. As well, there are the many librarians, researchers and institutional staff who make the life of a doctoral student palatable. Stéphan Bergevin and Patricia Stanton, registrar and court records officers at the Supreme Court of Canada, helped me through the complexities of reviewing old Supreme Court records; Alicia Loo, the Chief of Information and Reader Services at Supreme Court of Canada library, for arranging and setting up my regular visits; Martin Ruddy, Orientation Services at the Library and Archives of Canada, who helped me navigate the difficult corridors of information related to the Special Joint Committee of 1980; Daniel Perlin at Osgoode Hall library, who always seemed to go beyond what anyone could expect to find obscure UN documents and debates, Saskatchewan Hansard records that were not available in Ontario, etc. (and his colleagues who he contacted on my behalf: Greg Wurzer, the Reference Librarian at the University of Saskatchewan law library, and Grant Kayler, the Acting Head Librarian, University of Alberta.) Other professional contacts were selfless in assisting me. Gregory Senda, counsel for the Wilson Bretheren in the Alberta v. Hutterian Bretheren of Wilson Colony case, provided me with the full record of the SCC proceeding in that case; and Dr. Kent Donleavy, professor of Education at the University of Calgary, who has a passion for conscience that is unbounded, provided me with invaluable references and bibliographic material and many hours of interesting discussions. And another University of Calgary faculty member, Peter Bowal, who co-authored an article on whistleblowers with me, helped refine some of my thinking. I am lucky to be associated with a great law school and great faculty and staff. All of them have been very supportive over the years. Four faculty should be singled out, for being a huge help: Craig Scott, who gave me invaluable advice on international human rights documents; Peer Zumbansen, who helped with the German jurisprudence on conscience and religion (and put me in touch with Russell Miller, who deserves particular mention for lending me drafts of an unpublished new edition of Kommers Constitutional law text); Francois Tanguay-Renaud v for his advice on Joseph Raz, and Patrick Monahan, who, as Dean of Osgoode, was always willing to offer his unconditional support for my unconventional career at Osgoode Hall Law School. On the administrative side, Lynne Fonseca and Maria Abballe have been the best administrative assistants anyone could ask for. Finally, I cannot thank enough the two most important women in my life, without whom this doctorate would not exist, nor would I be the person I am. My mother, Shirley Haigh, who actually read a draft of it all and gave her invaluable comments, despite worrying that she knows nothing of the subject. And Charlotte Davis, my partner, best friend, my most cherished editor, and best thing that ever happened to me. She has shaped my own conscience more than she will ever know. And, she’s had to put up with me every day for the past 27 years. For that, she deserves her own doctorate. vi Table of Contents Title Page No. Abstract ii Acknowledgments iv Table of Contents vii Chapter 1: Introduction 1 Belief and Intolerance in the Ascendant 3 Religion in the Constitution: Defining Belief in Canada 7 Legal Religious Freedom: Toward Individual Autonomy 11 Envisioning an Independent Role for Conscience 12 Chapter 2: Freedom of Conscience, Freedom of Religion: The Twin Sparks of Celestial Fire 19 1. The Meaning of Conscience: A Distinct Concept 20 2. Subsumed and Distinct Conscience: An Introduction 28 vii Chapter 3: Conscience in Legal Doctrine: Unformed Burls Outside Canada 44 1. Introduction 44 2. Category 1: Undifferentiated Conscience 48 2.1 Debates Over the First Amendment 48 2.2 International Rights Documents 52 3. Category 2: Religion and Conscience As Distinct 63 2.1 Conscience in Debate: U.S. and International Documents 63 2.2 Conscience in Cases: U.S. and European Judicial Decisions 69 Chapter 4: Conscience in Canadian Law: The Burl on the Living Tree 90 1.
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