In this issue:
freedoms of conscience and religion; discrimination on the basis of sexual orientation; Ontario Human Rights Code ("Code"); Canadian Charter of Rights and Freedoms ("Charter"); public expression of religious beliefs; distinction between persons and action / persons and conduct; being conscripted to a cause; proper interpretation of conflicting rights claims; "core elements" of religious belief; religion as a group right; nature of "tolerance" and "pluralism" in a liberal democracy
For the facts of this case, please see LexView 38.0.
On appeal, the issues which the Superior Court construed as being raised before it were: a) whether the Board of Inquiry ("the Board") had erred in adding the Canadian Lesbian and Gay Archives ("CLGA") as a complainant; b) whether Mr. Brockie discriminated against Mr. Brillinger by denying him printing services because of sexual orientation and whether doing so demeaned him and other homosexuals; c) whether Mr. Brockie's dignity was demeaned by being conscripted to support a cause with which he disagrees based upon an honestly held and sincere religious belief and whether there ought to be a defence to an allegation of discrimination based on the bona fide reason for the discrimination so as to permit a right of dissent; and d) how the "conflict of dignities" presented in the appeal ought to be addressed so as to result in a balance which respects both the right to freedom of religion and the right to be free from discrimination in the marketplace, based on an analysis of the Code and the Charter.
This is an important case for the freedoms of conscience and religion in Canada: the Superior Court has recognized a public space for persons to refuse to provide commercial services if doing so would conflict with the "core elements" of their religious belief or conscience. It is hoped that this is a principled reflection of the fundamental importance of the freedoms of conscience and religion. A concern, however, is that the judicial recognition of this essential need for a public space for dissent runs the risk of being an abstract and hollow victory, in that courts might misinterpret the test they have established for delineating the space, which involves evaluating what is reasonably construed as "core" to religious conscience or belief versus what is not.
The Superior Court issued a preliminary ruling in which it found that the Board had no jurisdiction to add the CLGA as a complainant.
The court found that Mr. Brockie had discriminated against Mr. Brillinger in not providing the services.
The court found that while it had no power to order that a defence could be read into the Code since this was not argued before the Board at the original hearing, it did, based on Charter analysis, find the Board's order that Mr. Brockie print any material which Mr. Brillinger or other gays and lesbians wanted printed was overbroad. The Board's order was found to be unconstitutional because it directed that Mr. Brockie print materials submitted to him even if they were contrary to the "core elements" of his religious faith or even if they were materials which ridiculed his religious faith. The order made by the Board was thus modified so that Mr. Brockie would not have 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."
That having been established, however, the court found that the infringement of Mr. Brockie's freedom of religion was justified on the particular facts of this case, meaning that the printing of letterhead, envelopes and business cards for the CLGA was demanded of Mr. Brockie because doing so would not, according to what the court deemed was reasonable, be contrary to the "core elements" of his religious faith. Based on this, the court also upheld the demand that Mr. Brockie print the materials and also upheld the $5000 fine. The issue of costs has not been determined at the time of this writing. The decision on the merits has not been appealed.
The court's reasoning that there was discrimination against Mr. Brillinger was based upon the finding that the denial of services related to Mr. Brillinger's association with the CLGA and ". . .the gays and lesbians as a group whom Archives represents and who are its members." Mr. Brillinger, it was noted, was not refused the services because of his sexual orientation, but because of his association with the group. Most importantly, the court "found specious" that there is a distinction between discrimination related to the "presence of or association with a human characteristic" (e.g. 'being homosexual') and discrimination related to the "political act of promoting the causes of those who have such characteristics" (e.g. 'advocating the moral acceptance of a homosexual lifestyle.') The court rejected this distinction because it "defies rational justification." The court stressed that no precedents were offered to justify not protecting the "reasonable interests of persons who possess the characteristics specified in s. 1 of the Code." Therefore, the conclusion was that ". . .efforts to promote an understanding and respect for those possessing any specified characteristic should not be regarded as separate from the characteristic itself."
In addressing the Board's order that Mr. Brockie "provide the printing services that [he] provides to others to lesbians and gays and to organizations in existence for their benefit", the court recognized that it had been conceded by the parties before the court that the order did infringe upon Mr. Brockie's freedom of religion. The court then noted, however, that the right to freedom of religion is not unlimited: "it is subject to such limitations as are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others." The court also cited the fundamentally important proposition, referred to in the case of Trinity Western University v. B.C. College of Teachers,  1 S.C.R. 772, that "the freedom to hold beliefs is broader that the freedom to act on them."
In turning to s. 1 of the Charter to justify the infringement of Mr. Brockie's freedom of religion pursuant to the legal test outlined in R. v. Oakes,  1 S.C.R. 103, the court held that the objective of the Board's order was pressing and substantial, but that the Board's means, the order, was rationally connected to the objectives only insofar as the order pertained to the materials at issue in this particular case, meaning the letterhead, envelopes and business cards. Given that the order's language clearly covered other materials with content which could be "clearly repugnant to the fundamental religious tenets of the printer", the court found that the order would cease to be rationally connected to the objectives of removing discrimination, as "the Code prohibits discrimination arising from the denial of services because of certain characteristics of the person requesting the services, thereby encouraging equality of treatment in the marketplace. It encourages nothing more."
Elaborating on the issue of Mr. Brockie's right of dissent, the court held that were a printing project to be brought to Mr. Brockie by an gay or lesbian person or any organization comprised of such persons, which "contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs, such material might reasonably be held to be in direct conflict with the core elements of Mr. Brockie's religious beliefs." An example, the court said, of material that would not, perhaps, cause a conflict, was a "directory of goods and services which might be of interest to the gay and lesbian community."
The court thus modified the order so as to "not require Mr. Brockie. . . 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." Given that the rest of the order stands, Mr. Brockie was ordered to pay the $5000 fine and to print the letterhead, envelopes and business cards.
The core of the Superior Court's decision is that an individual can refuse to provide commercial services that "could reasonably be considered to be in direct conflict with the core elements of his religious belief or creed." Mr. Brockie, therefore, was not required to print anything which "proselytized or promoted the gay and lesbian lifestyle" or anything which ridiculed his religious belief. This is an important finding, insofar that it affirms a public space for religious or conscience-based dissent. It is a particularly important holding in the context of the Code, which does not contain an explicit provision respecting the freedoms of conscience and religion of business owners. This holding is also important in that it runs contrary to the routine allegation mounted in courts across the country that the freedoms of conscience and religion ought to be limited such that they are private rights, rights which are only protected in the home or church. The Adjudicator below had stated that her order did not fail to respect Mr. Brockie's faith, as "Brockie remains free to hold his religious beliefs and to practice them in his home, and in his Christian community." This is not enough, and the court recognized it. It is also noteworthy that interveners supporting Mr. Brockie's appeal included the Canadian Civil Liberties Association, which had also intervened in support of Trinity Western University in another case in which the freedom of religion was under attack.
The court chose to defend this public space for dissent based on its view that to extend the protection against discrimination so as to force Mr. Brockie to print materials which conflicted with the "core" of his conscience or religious belief would go beyond the goal of "encouraging equality of treatment in the marketplace." To demand that Mr. Brockie print anything which was brought to him, therefore, would no longer be rationally connected to the objective of eradicating discrimination in the marketplace in a situation where the materials have "editorial content espousing causes or activities clearly repugnant to the fundamental religious tenets of the printer."
Some press reports have suggested that this explanation for providing Mr. Brockie with constitutionally protected space for conscience or religiously based dissent is not adequately robust nor adequately convincing. If the court was willing to find discrimination in the first place, based on the fact that "efforts to promote an understanding and respect for those possessing any specified characteristic should not be regarded as separate from the characteristic itself" and if the court's understanding of the characteristic conflates "persons" and "action", then what really stops it from requiring Mr. Brockie to print any materials? Is it not still consistent to force him to print materials which actually promote a homosexual lifestyle if there is no difference between the presence of a characteristic in a person and the process of promoting the acceptance or even the celebration "visibility" of persons acting on the basis of such a characteristic? The Court's reasoning here is logically inconsistent. In allowing Mr. Brockie a public space to disagree with the moral status of homosexual conduct, when it has been adequately established that this is what is in fact at issue, it is suggested that the court has actually implicitly accepted the persons-conduct distinction and implicitly rejected the claim made by some parties before it that Mr. Brockie's position on homosexuality is akin to racism.
Perhaps it was the factual basis of the record, which did not establish that Mr. Brockie had made any inquiry about the overall purposes of the CLGA at the time he refused the printing job at his place of business, which motivated the Board and the court to rule as they did. We are left to speculate whether there would have been any finding of discrimination had Mr. Brockie determined, at the time of their initial meeting, through questioning Mr. Brillinger, exactly what the purposes of the CLGA actually were. It clearly flows from the Court's reasons, however, that once a cause goes against a religious person's "core" religious beliefs (which one would assume would be determined by an adequate questioning about the nature of the services requested and of the person or group requesting them), a religious person would be under no compulsion to provide the sought after services.
It is suggested that a more coherent explanation of the need for space for conscience or religiously-based dissent is a clear recognition of the persons-action distinction, illuminated by the reality of the importance of the freedoms of religion and conscience and the plain repulsion which manifests from thinking that persons can be conscripted to support causes against which they have strong conscience or religiously based objections. Had the court reflected more upon why it accepted the persons-action distinction in an instance where the "core" of Mr. Brockie's religious belief was affected, it is suggested that it might have also found that there ought to have been no finding of discrimination in the first place. Further, it is hoped that in a future case of this sort, a better marriage of the principles allowing a public place for what amounts to disagreement about beliefs alongside a richer understanding of pluralism ought to lead to just such a conclusion.
The court's approach to the persons-action distinction, which it found to be "specious", misunderstands the nature of human rights codes and legislation aimed at protecting persons from discrimination, especially since codes are meant to apply as between private parties rather than as against the weight of the state. Section 1 of the Code is directed at the issue of preventing discrimination against persons, rather than the refusal to serve causes. If this approach were adopted, it is possible to provide for the protection of the public aspect of the freedoms of conscience and religion and also protect against discrimination against persons, e.g. cases of refusing to serve persons simply because of who they are, per se. It is a clear and good proposition of law that individual persons ought not be discriminated against on a number of grounds, including the ground of sexual orientation. This is a bona fide reasonable interest which s. 1 of the Code addresses. Promoting the acceptance, "celebration" or, as in this case, the "visibility" of acting upon a homosexual disposition or political activity aimed at the same, however, is found to be protected within s. 1 of the Code only by failing to appreciate the distinction between persons and action. To conflate protecting homosexual persons from discrimination (a good) with denying persons the right to disapprove of homosexual behaviour is not "specious." The "rational justification" is that homosexuality, even if assumed to be a biologically natural occurring disposition, is still legally capable of being construed by some persons, whether for religious or other reasons, as not being a morally good disposition on which one ought to base one's actions.
To date, nothing has been established in any leading Supreme Court case, including Vriend v. Alberta,  1 S.C.R. 493, to the effect that it is unconstitutional for Canadian citizens to morally disapprove of homosexual conduct and relationships. Most judges seem to recognize that to do so would be a grave violation of the freedoms of expression, conscience and religion. Only L'Heureux-Dubé J., dissenting alone in Trinity Western, claimed at p. 824 that the distinction between persons and action, between "the sinner" and "the sin" as she stated, was unjustifiable in the context of homosexuality.
As set out in R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295 at p. 336, the freedoms of conscience and religion clearly have an essential public dimension: "[t]he essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination." In Trinity Western, however, it was recognized that "[f]reedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation."
It is also necessary for courts to recognize that the freedom of religion is also important as a group right. Too great a focus on its individual and personal aspects can obscure the important roles religious groups play in society. This needs to be kept in mind by the courts lest an excessively individualistic conception of a "right to freedom of religion" obscure this key communitarian dimension. Also noteworthy is that the freedoms of religion and conscience, construed as both an individual and group right, are related to an essential aspect of the freedom of expression, the "search for truth." Therefore, it becomes particularly important to protect those aspects of society, especially the community aspects of civil society, that have as their raison d'être the pursuit and nurturing of truth claims. Religions are, perhaps without equal, important for precisely their communitarian and their "truth seeking" and "truth clarifying" roles in society.
In dealing with the case at hand, the court ought to have employed the approach urged in Trinity Western (see discussion in LexView 46.0), that in cases where the freedoms of conscience and religion are in tension with the right to be free from discrimination based on sexual orientation, the court must ask the preliminary question of whether "any potential conflict should be resolved through the proper delineation of the rights and values involved."
On the facts of the case at hand, Mr. Brockie was publicly manifesting his religious belief. He had, as a matter of fact recognized on the record, commercially served both individual homosexual persons as well as a company which sold products marketed to the homosexual population. He refused to provide services to Mr. Brillinger not because he was homosexual, but because Mr. Brillinger was bringing in materials to be printed for the CLGA, a group he assumed, without having made any inquiries, to be an advocacy group. The Board below, however, did accept that had Mr. Brillinger been bringing in personal materials, there was no doubt that Mr. Brockie would have provided the service. Similarly, if a non-homosexual person had brought in the same CLGA materials, it is suggested that is little doubt that Mr. Brockie would still have refused to provide the printing services.
An important point, submitted to the court by Mr. Brockie and the Interveners on his side of the case, is the recognition that a basic limitation placed on advocacy groups is that they cannot compel persons to support them, particularly so in cases where such compulsion would violate a person's freedoms of conscience and religion. Therefore, while persons and causes are to some extent interlinked, those involved in a cause cannot demand the support of others who disagree with them. To do otherwise is to deny the freedom of the individual, a slide towards illiberalism. It is also suggested that the existence of a hotly contested issue demands, rather than undermines, the need for preciously guarded space for disagreement: as the United States Supreme Court stated in West Virginia Board of Education v. Barnette, 319 U.S. 624 at 642, "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."
The court's approach in this case, as in the judgment of L'Heureux-Dubé J. in Trinity Western, risks undermining a proper understanding of pluralism. The key to tolerance is not legislatively or constitutionally forced agreement, but a meaningful fostering of the ability to disagree about important matters harmoniously—meaning in a manner which does not imperil co-operative living. At the base of this is the notion of equality, and its Supreme Court attributed hallmark, dignity. To disagree with either a religious or homosexual person about the ordering of goods in society, about what is moral, about what behaviour ought to be encouraged or discouraged, does not undermine or jeopardize dignity as long as the persons-action distinction is recognized. If the distinction is abandoned, however, it is suggested that the ability to defend a range of contentious contemporary religious, legal and public policy issues is significantly jeopardized. The big question will therefore continue to be: does the laudable goal of safeguarding homosexual persons from actual or potential discrimination necessitate the elimination of diverging views on the rightness or wrongness of homosexual behaviour? The answer must be no: as per LexView 38.0, "[t]he respect owed to lesbians and gay men as persons can be achieved without overriding the legitimate exercise of the religious beliefs of those who do not agree with the morality of homosexual acts."
In Trinity Western it was stated that the freedom to hold beliefs is broader than the right to act on them. This is a good proposition of law, and one need only consider religiously inspired cannibalism or clitorectomy to make the point. But the freedom to hold beliefs must be permitted to work both ways: homosexual persons who wish to advance the acceptance of homosexual behaviour and conduct must also respect the space of persons to disagree. This idea is discussed in LexView 38.0, to the effect that homosexual persons and religious persons who disagree about homosexual conduct are both protected by s. 15 and s. 2(a) of the Charter. Claims to equality, whether under Provincial codes or s. 15 of the Charter, ought not to be permitted to purge unpopular beliefs about the morality of sexual behaviour. To do so denies the clear proposition of law that there is no hierarchy amongst the rights in the Charter; it renders s. 2(a) hollow before the might of some applications of s. 15. Genuine pluralism requires that religious people be free from discrimination claims used as a sword by those who disagree with the religious position on homosexual conduct.
Another point is that the court, in the manner in which it handled "minimal impairment", seems to fail to ask whether the new order really is minimally impairing. Had the court construed the objective of the order as "ensuring that all persons have equal treatment with respect to commercial services", an objective which flows naturally from the language of s. 1 of the Code, rather that the loaded objective of "punishing discrimination and preventing a repetition of it by the Appellants and others", then the court might have asked whether ensuring that Mr. Brillinger and the CLGA had access to services was not in fact the concern of greatest weight. Overstating the purposes and scope of human rights legislation is a serious problem in Canadian society. Though the court does not explicitly say so, the manner in which it "pruned" the overreaching order of the Board was a clear recognition that the Ontario Human Rights Commission had interpreted the Code in an overly ambitious manner.
The second major issue to be addressed is the fact that despite having found that a public space for dissent must exist for persons such as Mr. Brockie, it was found that he could not "reasonably" refuse to perform the services requested on the facts in the case at hand. In making this finding of fact, it seems quite clear that the court was greatly influenced by Mr. Brockie's failure to make an adequate inquiry about the nature of the CLGA at the time he refused the printing job. Had Mr. Brockie investigated at the time and determined the purposes of the CLGA (which were "to "promote [lesbian and gay men's] acceptance in society" by "providing public access to information, records and artifacts, by and about lesbians and gay men in Canada"), he would have had a far stronger case. He would then have been able to argue that printing even the seemingly content-neutral letterhead, envelopes, and business cards would put him in a position where he was acting to further a cause against his conscience and religious belief. The court, therefore, while being bound by the facts of this case, has perhaps created a test that may well permit religious persons to refuse to provide commercial services once they have sought out adequate information about the group's purposes. It would seem axiomatic that one person's "ordinary" business materials could be deeply offensive to another's religion or conscience where the "services" relate to uses opposed to a person's conscience or religious viewpoint. In this respect the "ordinary" business materials category adds nothing to the principles of this case: the central focus must be the conscience and religious beliefs of the citizen and the connection between such beliefs and refusals to do business. This will, no doubt, be tested on a case to case basis.
The freedoms of conscience and religion are rendered hollow if they are not taken seriously, from the religiously observant person's point of view—the so-called "subjective" test, the standard approach for many years in labour relations cases where claims for religious accommodation are made. While the court might have been bound to find against Mr. Brockie on the facts of this case for the reason discussed above, a very real problem with the general test of law suggested by the court occurs with respect to the requirement that matters may be objected to if adequately "core" to a religious conviction. Who is to determine what is "core?" The court suggests that there is some sort of objective judicial ground for this determination. But that cannot be correct. Religious beliefs are not usually the kind of matters that can, or ought to coincide with what judges determine is "reasonable", yet that appears to be what this test requires. On the facts of this case it is hard to escape the conclusion that the judges just determined that Mr. Brockie had failed, even by his own standards, to establish a "core" belief conflict because he had asked no questions about the nature of the group he refused to serve. Religious believers in future cases (or believers of whatever sort) ought to ensure that they have sufficient information about the nature of groups and persons requesting their services before they decide that they cannot perform requested services owing to conscience and religion. Failure to do so may well raise a concern about "bigotry" that bolsters allegations of discrimination and may tend to defeat "reasonable" religious objections based upon "core" religious beliefs. Once such a basis has been established, however, it is not for the court to second guess it.
The broader issue raised by this case is the question of what view of liberal pluralism the court is advancing. When the courts, in the name of tolerance, are used as instruments of compulsion, to force citizens to serve causes that contradict what they hold to be true, tolerance becomes increasingly intolerant. Tolerance is not achieved by forcing everyone to agree on everything. As University of Chicago Theology Professor Jean Bethke Elshtain noted when she spoke at the recent Pluralism, Religion and Public Policy Conference held in Montreal (October 2002, see the Centre's website), this misunderstood notion of tolerance is unacceptable as it only protects freedoms such as expression and religion as long as the claims being made are irrelevant in the face of the demands of the state or are irrelevant in the face of claims that are construed as being more popular.
Falling prey to a systematic misunderstanding (implicit or explicit) that liberalism demands "convergence"—that is to say that we are all moving towards agreement on the central questions, involves the risk that judges might evaluate religious claims and pick-and-choose those which they think are "core" enough to deserve protection. Rather than complaining or arguing about what "core" and what is not, the challenge is to ask the logically prior question of why judges are engaging in evaluating the religious beliefs of private citizens in the first place? This is especially so when acting upon these beliefs is done in a manner which is not discriminatory against persons (assuming the persons-action distinction continues to be recognized by appellate courts and assuming that courts are more willing to see the distinction between discriminating against persons rather than causes) and is done in a manner which does not imperil co-operative living.
This issue of LexView was researched and written by:
T. Peter Pound, B.A (Hons), B.A. in Juris. (Oxon.)(Hons.), LL.B, B.C.L., of the Ontario Bar.
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Note: Mr. Benson was co-counsel with Mr. Phil McMullen of Toronto on the Appeal of this Case. Mr. Benson took no part in the original arguments before the Ontario Human Rights Commission.
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Copyright © 2010 Iain Benson and Brad Miller
LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.
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