First in a four-part series considering the idea of the politicization of the Charter right to freedom of religion. Part 2, tomorrow.
At the October 1, 2018 Parliamentary Forum on Religious Freedom, Father Raymond J. de Souza presented a talk called, “From Fundamental Freedom to Partisan Position: The Degradation of Religious Freedom.” You can watch the video of his comments here, beginning at 1:14:30.
Over this four-part series, I intend to unpack the idea of the politicization, and the potential for politicization, partisan or otherwise, of the Canadian Charter of Rights and Freedoms guarantee of freedom of religion. Many Canadians have not read the Charter, so I will quote relevant sections.
Let’s begin with the constitutional guarantee. The word “guarantee” was chosen by the framers of the Charter rather than another such as grant, recognize, or acknowledge. This word selection is an indication that freedoms and rights stated in the Charter, such as freedom of religion, already had a history in Canadian politics and jurisprudence, and Canadians had an expectation for ongoing protection.
Although stating the guarantee, section 1 of the Charter also notes there is permissible limitation of rights. Any limitation of rights or freedoms is, therefore, subject to assessment of constitutionality by judicial action.
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Crucial to the limitation of rights under the Charter is that the limitation must be the result of a government action that can be substantiated before a court as reasonable in a society that is both free and democratic. While fundamental freedoms are listed in section 2, the Charter outlines democratic rights in sections 3, 4 and 5.
The reason any acceptable limitation on rights and freedoms under the Charter must be by government action is because the Charter only applies to protect citizens from the actions of government. Section 32 of the Charter reads:
- (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Rights of citizens in relationship with other citizens, corporations, and other government circumstances are not covered by the Charter. Civil rights, or human rights as they are now most often called, in Canada are governed by provincial legislation in accordance with the Constitution Act, 1867, section 92, subsection 13 which recognizes the exclusive right of provincial legislatures to make laws in regard to civil rights. The statement of rights and freedoms guaranteed in the Charter was negotiated and agreed upon by the federal and provincial governments. That agreement is recorded as Part I of the constitutional amendment that took place with the Constitution Act, 1982.
Also negotiated as part of the Charter was a confirmation that Canada continues as a parliamentary democracy. Parliament makes the laws. The courts interpret the laws. With the new authority to assess constitutionality of Canadian laws in the light of guaranteed rights and freedoms, Parliament retained its pre-existing authority to act, when convinced it is necessary, with sovereignty over a decision of the courts in regard to fundamental freedoms (section 2), legal rights (sections 7 to 14) or equality rights (section 15). Section 33 of the Charter, often referred to as the “notwithstanding clause,” combined with the democratic rights found in sections 3, 4 and 5, denotes the continuing primacy of citizens in Canadian democracy, and our elected representatives, over the judiciary, lawyers appointed to assess the application and constitutional acceptability of laws enacted by our elected representatives.
- (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
Section 33 may only be exercised by Parliament or a provincial legislature. Municipal governments and school boards are subject to the constraints on government action provided by the Charter but cannot exercise the notwithstanding provision. They exist by action of provincial legislatures under the Constitution Act, 1867, section 92, subsection 8 (municipalities) and section 93 (education), and action of the territories as provided for under the federal jurisdiction granted in the Constitution Act, 1867.
Charter rights and freedoms:
- were politically agreed;
- enshrined in the constitution;
- and, are interpreted by the courts, subject to specifically stated legislative decision to overrule a court decision.
The rights and freedoms guaranteed in the Charter begin at section 2. Section 2 of the Charter states:
- Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Freedom of religion is noted as a fundamental freedom. To use terms tied together in section 1 of the Charter as a description of Canadian society, fundamental freedoms are the freedoms essential to citizens in order to have a “free” society, and they are necessary (along with the rights found in sections 3, 4 and 5) in order to have a functionally “democratic” society.
When these freedoms are given a broad understanding and jealously guarded, as the Supreme Court of Canada stated in regard to freedom of religion in its 2004 decision in Reference re Same-Sex Marriage, Canadians’ freedoms are secure and democracy functions with the state neither favouring nor hindering a particular category of its citizenry. The term used by the Supreme Court of Canada to reference the non-favouring and non-hindering role of court and government in its 2012 decision in S.L. v. Commission Scolaire des Chênes and its 2015 decision in Loyola High School v. Quebec is “state neutrality.”
With that foundational outline, let’s next turn to consideration of the potential degradation of the fundamental freedom (to use Father de Souza’s frame of reference from his October 1 talk) that might occur when the state – either government or court – is not neutral, when one or more guaranteed rights or freedoms are politicized, perhaps even politicized in a partisan way.