Third in a four-part series considering the idea of the politicization of the Charter right to freedom of religion. Part 4, tomorrow.
In November 2015, Father Raymond J. de Souza was a member of a panel with retired Supreme Court of Canada Justice Louis LeBel. They were speaking on the topic “Freedom of Conscience and Religion: Where are we Headed?” at the Religion and Conscience in Court conference held at McGill University.
In his October 1, 2018 comments at the Parliamentary Forum on Religious Freedom de Souza referenced an exchange he had with LeBel. Here is de Souza’s record of the exchange from a June 2018 article, “The Charter Circle Game,” published by Convivium.ca.
In my own remarks on a panel with LeBel, I observed that freedom of conscience and religion were the first freedoms listed in the Charter and therefore required special attention. In response, LeBel noted that there was no “hierarchy of rights” provided by the Charter itself. That itself ignores that the Charter begins by enumerating “fundamental freedoms.” If all freedoms are equal, or at least no freedoms are more equal than others, why bother calling some of them “fundamental”?
Nevertheless, LeBel explained that while there was no hierarchy of rights, over time certain rights had emerged as more central or more important in the Court’s jurisprudence. So, while LeBel rejected the idea that there might be a vertical ordering of rights, with some higher and some lower, he proposed a concentric ordering of rights, with some more central and some less so.
I asked Justice LeBel if he might indicate what was more central in his non-hierarchical hierarchy of rights. He was good enough to answer.
“The right to equal treatment,” he explained, referring to Section 15 of the Charter, was the most central. He added two others: “The right to be treated with respect, and the right to participation in society.”
The primacy of equality rights means that in conflicts, real or apparent, between equality rights and fundamental freedoms, including religion and conscience, the equality right wins. …
The other two rights – to be treated with respect and to participate in society – are remarkable because they do not appear in the Charter at all. Yet LeBel, fresh off the court, argued that they are more important – pardon me, more “central” – than the actual rights in the Charter itself.
Surely, one would hope, the Supreme Court of Canada would not place political concepts not found in the Charter ahead of actual constitutionally negotiated and enshrined rights and freedoms? And yet here was a recently retired Justice of the Supreme Court saying just that.
Yesterday I mentioned that 6,000 lawyers in British Columbia voted against approval for a private Christian University to establish a law school in that province. Trinity Western University appealed the referendum decision, with successful results at the Supreme Court of British Columbia and the British Columbia Court of Appeal. The lawyers’ regulatory body appealed the decision to the Supreme Court of Canada.
The parties were:
- Trinity Western University, a private religious university located in British Columbia, with a previously Supreme Court of Canada recognized right to freedom of religion protection under the Charter from the actions of the government regulatory body for teachers (Trinity Western University v. British Columbia College of Teachers), and
- The Law Society of British Columbia, the government authorized self-regulatory body for lawyers established by an act of the Government of British Columbia in 1884, with the authority to determine standards for admission to the legal profession and for the practice of law.
In its June 2018 decision in Law Society of British Columbia v. Trinity Western University, five members of the Supreme Court of Canada granted special status to the legal profession based on its perceived responsibility “to uphold and protect the administration of justice” and for “preserving and protecting the rights and freedoms of all persons.” The five then ignored its own 2001 affirmation of the Trinity Western University community’s freedom to its religious beliefs and practices, based on a shared covenant, in a case concerning the establishment of a teacher’s college. The five also had to pretzel their way around the law society’s admitted procedural errors in declining approval for Trinity Western to open a law school. To do so, the Court re-conceptualized “the diversity of Canadian society,” noted in 2001 as the reason for Trinity Western’s constitutionally-based approval to educate teachers, into the new and undefined Charter value it called “diversity;” a value which two dissenting judges described as “entirely the product of the idiosyncrasies of the judicial mind.” There are no “Charter values” in the Charter, only constitutionally negotiated rights, freedoms and responsibilities.
It was an astounding decision, based in judicial thought – lawyers now judges recognized the legal profession as special, and disregarded the role of elected legislatures and Parliament in regard to recognizing, preserving and protecting the rights of citizens. Without the legislatures and Parliament, Canada would not have a Charter, human rights codes or a myriad of other legislation that establishes the framework for societal function. What the decision was not was an interpretation of law or interpretation of actual content in Canada’s Constitution.
Speaking at the President of Israel’s Symposium In Honour of the 70th Anniversary of the Supreme Court of Israel, Justice Rosalie Abela of the Supreme Court of Canada made the following statements as part of her remarks:
It was the Charter of Rights and Freedoms in 1982 that brought the Supreme Court of Canada – and judicial independence – to the public’s attention, and introduced it to a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer.
A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph.
Section 101 of the Constitution Act, 1867 authorizes the federal government to establish a “General Court of Appeal for Canada.” The Supreme Court Act establishes just such a court, but nowhere is there authorization for its nine appointed members to adjudicate societal values or establish their own vision of justice as outlined in the comments of Justice Abella and retired Justice LeBel.
Concern that the courts might take just such a culture-shaping approach resulted in section 33, the “notwithstanding clause,” being included in the Charter. Section 33 assures that Canada’s elected representatives retain the final word on policy matters in our constitutionally “free and democratic society.” The following Charter rights guarantee the final word rests with the people.
- Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
- (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.
(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.
- There shall be a sitting of Parliament and of each legislature at least once every twelve months.
Canada’s citizens hold the final word, not the courts or the government. Citizens determine control of Parliament and the legislatures. Section 33 permits a federal or provincial government to overrule the decision of a court on fundamental freedoms, legal rights, or equality rights, and requires renewal of that government action every five years. Section 4 ensures that no government will outlast such a decision, unless re-elected by the free vote of citizens before the decision is revisited.
Our Constitution sets down in black and white that the balance of power does not rest with the Supreme Court of Canada or with government but with the electorate, you and me.
In addition to state actors – i.e. government bodies and the courts – the other community that has engaged somewhat in the politicization of freedom of religion in Canada is the religious community itself. That will be our consideration in the final instalment of this series.