Freedom of conscience appears in the Canadian Charter of Rights and Freedoms, the Universal Declaration of Human Rights, and many other bills of rights. Yet, despite its universality, this human right is, by and large, universally neglected by courts, legislatures, and policy-makers.
Today, more so than before, reliance on freedom of conscience implicates the interests and rights of other citizens. Owing to modern phenomena such as globalization, many of us live in deeply diverse, multicultural, and plural societies. These current characteristics of many Western societies inevitably increase the prospect of sharp disagreements between citizens on what is good, right, and true—as well as the need to resolve these disagreements. This paper takes up the challenge of grappling with the clash of interests and rights in these cases.
This paper unpacks what freedom of conscience protects, why it is worth protecting, and when it may—and may not—be limited. For the sake of individual flourishing, peaceful coexistence, and liberal democracy itself, we say that freedom of conscience merits robust protection.
We aim to raise awareness of the importance of freedom of conscience in a liberal democracy and alert Canadians to the pressing need for this human right to be afforded due respect. Using current case studies from Canada that engage freedom of conscience, we offer concrete recommendations as to how this human right can be robustly protected at home and abroad.
History teaches that conscience can instigate fundamental social change, for the better. Conscience not only safeguards core convictions—it also promotes moral growth, for individuals and societies alike. Conscience, though inherently individual, is vital to the common good. To realize societies that are just and equitable, it is safe to say that freedom of conscience is indispensable. It is our intention that this paper will contribute to an essential public discussion on freedom of conscience and how we can better shape our laws, and ourselves, in accordance with this neglected freedom.
More than 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 paper focuses on one of them: freedom of conscience.
In a previous Cardus paper, “The Imperative of Conscience Rights,” we proposed that freedom of conscience—understood as the freedom to live in alignment with our moral and ethical convictions—merits robust protection in a liberal democracy. 1 Such protection is merited by the vital importance of conscience to the flourishing and ethical integrity of individuals and the societies in which they live. With this paper we wish to move beyond that initial first step, toward renewing and cultivating respect for freedom of conscience in Canadian law and among Canadians.
Broadly stated, freedom of conscience sparks controversy in two contexts. The first is when a person refuses, because of conscience, to perform an action that happens to be lawful: the soldier who declines to work at a concentration camp, the pacifist who will not bear arms, or the physician who refuses to euthanize a patient. The second is when a person refuses to do something that would endorse a belief or cause that she conscientiously disagrees with: the journalist who opposes a directive to publish state propaganda, the public official who refuses to take an oath containing statements that he considers dangerous or untrue, or the politician who votes against legislation that she deems gravely harmful to the common good.
How, in a liberal democracy, should we handle these scenarios? When must conscience give way to other considerations in the public square? When should conscience take precedence? This paper tackles these questions. Even when considering these questions, can we accept the fundamental premise that all of us would wish, if we were to find ourselves in any of the scenarios described above, to be free to follow conscience? We at Cardus would argue in favour of such an assertion: that this hope is common to all of us. How can we accept this as objectively true? Because of the immense value that we, as human beings, innately ascribe to living integrally. It is only reasonable, then, that we should support fellow citizens who find themselves in these scenarios—even if we disagree with their convictions of conscience. All of us naturally hope that our fellow citizens would afford us the same treatment if ever the tables are turned.
Article 1 of the Universal Declaration of Human Rights captures this idea well by not only affirming that all human beings “are born free and equal in dignity and rights” but also, fittingly for the topic at hand, that they are also “endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” 2 This outlook should be embraced by all citizens for the sake of individual flourishing, peaceful coexistence, and liberal democracy itself. This paper makes the case for that destination, and explores how we can get there. We aim to raise awareness of the value and significance of freedom of conscience in a liberal democracy, alert Canadians to the pressing need for this human right to be afforded due respect and protection, and propose ways in which that respect and protection can be cultivated and achieved.
This paper proceeds as follows. Part 1 offers a primer on what freedom of conscience protects, why it is worth protecting, and when it can be limited. Part 2 presents three current case studies that engage freedom of conscience. With these case studies in mind, part 3 offers concrete recommendations as to how freedom of conscience should be robustly protected in Canada.
I. A Primer on Freedom of Conscience
Freedom of conscience appears in s. 2(a) of the Canadian Charter of Rights and Freedoms, Canada’s constitutional bill of rights. 3 To date, there has been only one court decision in Canada that has relied exclusively on the guarantee of freedom of conscience in the Charter. 4 It is fair to say that freedom of conscience is a dormant Charter provision. This dormancy is surprising given what the Supreme Court of Canada stated in 1985, in its first decision on s. 2(a). In Big M Drug Mart, the Court affirmed the relationship between “respect for individual conscience and the valuation of human dignity” and that an “emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition.” 5 One would have expected, reading this early Charter case, that freedom of conscience would play a major role in the life of the Charter. Yet in the nearly forty years since the Charter arrived, this has been far from the reality.
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. We instinctually say that everyone has a conscience, but not that everyone has a religion. This instinct is expressed in article 1 of the Universal Declaration cited above, which proclaims that all human beings are “endowed with reason and conscience.” 6
Over the centuries, countless individuals have made the choice to follow their conscience despite the adverse consequences of doing so. Many of these individuals, though persecuted in their time, have been seen in a better light later on. Muhammad Ali was stripped of his world heavyweight championship and banned from boxing for three years for his conscientious refusal to fight in the Vietnam War. 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 sixteenth-century Chancellor of England, lost his head for refusing to recognize the decision of king Henry VIII to split from the Catholic Church. Today pilgrims honour More 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 figures of conscience, regardless of whether one shares their convictions, reveals a shared respect for courage. It speaks to the universality of conscience: each person has one. While most of us will not 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 people dread the prospect of being told to violate their core convictions or else 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 affect other citizens in an immediate sense, while conscientious refusals to provide lawful health-care 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.
Owing to modern phenomena such as globalization, many of us live in deeply diverse, multicultural, and plural societies. These current characteristics of many Western societies inevitably increases the prospect of sharp disagreements between citizens on what is good, right, and true—as well as the need to resolve these disagreements. This paper takes up the challenge of grappling with the clash of interests and rights in these cases. This clash often involves fundamental concerns such as dignity and harm. At times, those concerns are at stake both for 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 conscientious grounds to provide one. These are difficult cases. This reality, however, does not diminish the need for guidance on how to reach just outcomes.
This paper 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 here are relevant elsewhere. Freedom of conscience is one of the “fundamental freedoms” in the Canadian Charter of Rights and Freedoms. Section 2(a) of the Charter guarantees, in one clause, “freedom of conscience and religion.” 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. 7 Freedom of religion has been studied and litigated to a far greater extent than freedom of conscience. The reasons why are likely multifaceted, but it seems fair to suggest that the longstanding nexus between religion and conscience in popular culture, literature, philosophy, and other intellectual disciplines has afforded conscience a strong religious connotation. The result, in modern human-rights discourse, is that the distinct human right known as freedom of conscience has, at best, been a “silent partner” to religious freedom. 8
This paper contends that freedom of conscience deserves robust protection because of what it protects and why this is protected. This human right should not be limited without compelling justification, because of its substance and rationale. Freedom of conscience protects the freedom of individuals to live in alignment with their core commitments, whether those commitments stem from religious or non-religious sources. Due to the inescapable relationship between conscience and conduct, freedom of conscience is primarily concerned with action. By contrast, the freedom to hold beliefs, moral or otherwise, is guaranteed by other human rights such as freedom of thought, opinion, or belief.
Moral or ethical commitments—matters of conscience—refer to moral principles, or ethical frameworks, and convictions. A detailed account of what constitutes a moral or ethical issue exceeds the scope of this paper, but ethics or morality is instinctually engaged by issues such as life, death, harm, and fundamental personal decisions. It is fair to say that by and large we intuitively know when ethical behaviour or morality is on the table in our daily affairs.
Freedom of conscience is about living in alignment with our core judgments, regardless of where those judgments come from. Why we protect this freedom boils down to the idea that conscience touches on core 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 us 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. When a person betrays these commitments, she inevitably compromises her integrity and identity. This can be a dreadful and inwardly divisive experience.
Moral injury and distress are tangible harms. 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 frustration, anger, guilt, anxiety, withdrawal, and self-blame.” 9 The consequences of violating conscience reflect the gravity of such violation. One author writes that “among the worst fates that a person might have to endure is that he be unable to avoid acting against his conscience—that he be unable to do what he thinks is right.” 10 And another says that “even one instance of acting against one’s conscience—an act of self-betrayal—can be devastating and unbearable.” 11
There is a spectrum of ways that the state might interfere with freedom of conscience. On one end is state action that bans activity which happens to complicate a person’s pursuit of a core conviction. A person who considers it wrong to eat meat and thus declines to consume this type of food is following her conscience. But laws of general application that happen to incidentally affect the ease with which she can honour this belief, such as a tax on fruits and vegetables to support struggling farmers, do not compel her to violate her conscience. In general, this sort of state interference with conscience does not cause concern in respect of freedom or dignity.
It would be different, however, if the state were to compel—through legislation, for example—all citizens to eat meat or pay a fine. This is the other end of the spectrum of how the state can interfere with conscience, and this end certainly engages the two broad contexts in which conscience makes headlines, described at the start of this paper. Here, the state forces the citizen to perform lawful activity that will require her to either violate her conscience—an act that always causes the citizen to endorse a belief with which she fundamentally disagrees—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 ordered to kill or be killed is a classic example. The person jailed simply for expressing a belief that is unpopular or unwelcome in the eyes of a government is a modern example. Today, Amnesty International identifies such persons as “prisoners of conscience.” 12
In liberal democracies such as Canada, these scenarios—in which freedom of conscience is profoundly and coercively violated—are rarely seen. Today, coercion by the state to violate conscience is more subtle. 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.
When is it justifiable to curtail freedom of conscience? Three principles—harm, human dignity, and undue hardship—are useful touchstones. Only so much can be said here on how these principles function in specific cases, but some guidance can be given. First, disapproval of a person’s view or style of life does not injure that person’s dignity. If the opposite were true, the scope of permissible discourse and expression in a plural society would be limited to a degree that is antithetical to liberal democracy. The notion that pointed critique of a person’s worldview constitutes harm or violence has gained traction in recent years. This notion not only departs from the principled reverence that is afforded to freedom of thought and expression in a truly free and democratic society. More troublingly, this notion is often—if not always—tactically deployed to suppress and exclude views that are unpopular or offensive today rather than substantively engaging with these views in the marketplace of ideas. This shortcut may be convenient and expedient for those who profess views that enjoy the favour of the majority today, but that favour will not necessarily be enjoyed tomorrow. It does not take extensive reflection to appreciate that the weaponization of emotion and offence runs the risk of inviting totalitarian tendencies into a liberal democracy.
Second, freedom of conscience can be limited when a citizen invokes the freedom to negate the essence of her profession—for example, a restaurant owner who refuses to serve a same-sex couple because of their sexual orientation. Third, freedom of conscience can be limited when the claimant refuses, for reasons of conscience, to provide a service if the refusal does not contribute to the claimant’s ability to live in alignment with a core conviction. 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 implies the existence of “due” hardship. Adversity—within limits—is one of the costs 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.
With these broad brushstrokes on the shape and substance of freedom of conscience in hand, we turn now to case studies that will serve to animate the discussion on how freedom of conscience ought to be more robustly protected in Canada moving forward.
II. Current Matters of Conscience
This paper takes up three case studies—one from health care, one about renting space for an event, and one regarding the publication of an article on a hot-button issue—for the purposes of considering the future of freedom of conscience in Canada. These case studies stem from different contexts and raise different substantive issues, but they are linked by their common implication of freedom of conscience. The range that these case studies presents suggests that matters of conscience can arise in various—indeed countless—situations in our lives. This reality reinforces the urgency with which we must attend to the just resolution of conscience claims.
Assisted Suicide: Irene Thomas Hospice
Freedom of conscience, when it makes the headlines, often does so because of conscientious refusals by health-care workers to participate in certain procedures or prescribe certain drugs. The prevalence of conscience in health care is understandable, given that the substance of this field—life, death, and the human body—inevitably and regularly raises moral and ethical issues. With the steady expansion of procedures in Canada such as assisted death, health care is poised to remain a hot spot for the topics of conscientious objection and freedom of conscience.
The Delta Hospice Society, a private organization founded in 1991 to provide end-of-life care, for many years operated a hospice in Delta, British Columbia. The facility, the Irene Thomas Hospice Centre, had ten beds. The BC Ministry of Health and the applicable health authority, Fraser Health, permitted the Irene Thomas Hospice to operate by granting the Society a lease for the land that the facility is located on and by providing funds to cover part of the operating costs. 13
After assisted suicide arrived across Canada in 2016, pressure mounted on the Society to permit this at the hospice. Nancy Macey, who founded the Society in 1991, had long opposed assisted suicide. She worked to provide palliative care as the hospice’s director until she was fired from this role in September 2019 by a board that favoured assisted suicide, despite the hospice’s founding principles and constitution. After her ouster, a new board was elected in November 2019—in this case, the board opposed the provision of assisted suicide in keeping with a conscientious conviction that assisted suicide does not form part of hospice and palliative care.
Since then, continuing pressure on the Society to betray this conviction led to an attempt to transform the membership of the governing body such that it would be controlled again by individuals who favoured the provision of assisted suicide at the Irene Thomas Hospice. This effort failed, but it did not stop Fraser Health and the provincial government from giving the Society an ultimatum: allow for the provision of assisted suicide, or lose the property that the hospice is situated on. The Society offered to forgo the $750,000 in public funds that it receives and operate solely on the basis of private donations. The relevant public authorities dismissed this offer.
In June 2020, the Society attempted to take the step of becoming a faith-based health-care institution so as to benefit from the present exemption that such institutions enjoy to conscientiously refuse to provide assisted death. Before a vote could be held, the Supreme Court of British Columbia ruled in favour of an application made by detractors of this option to halt the vote on taking this step. The Court, in reaching its ruling, cited a lack of procedural fairness. In March 2021, the Fraser Health Authority assumed control of the Irene Thomas Hospice Centre. As of this writing, the Society is considering other avenues of legal redress.
Provision of Goods and Services: Star of the Sea
In Canada, there have been few court rulings on the question of when individuals or organizations may conscientiously refuse to provide goods and services that would amount to endorsing or celebrating LGBTQ rights. In 2005, the BC Human Rights Tribunal decided that a Catholic group could refuse to rent its event hall for the reception of a lesbian couple’s wedding if the refusal were courteously communicated. 14 This precedent is poised to be tested by an ongoing lawsuit between an LGBTQ advocacy group and a Catholic community in White Rock, British Columbia. 15
The White Rock Pride Society, an LGBTQ advocacy group, requested to use the event hall at Star of the Sea Parish for a 2019 fundraiser during pride week. The Society’s second annual “Love Is Love” fundraiser, in keeping with its first fundraiser in 2018, sought to “create an event that ties in with the White Rock Pride flag raising ceremony; to promote inclusiveness, diversity and LGBTQ rights.” The event in 2018 raised funds for the non-profit organization PFLAG (Parents, Families and Friends of Lesbians and Gays). The event included a “catered meal, live music, auction, emcee, dancing and drag queen performances.” 16
Star of the Sea refused White Rock Pride Society’s request to use its event hall for the fundraiser because, in the view of the parish, the proposed use of the space would contradict certain moral teachings of the Catholic Church. The Catholic Church believes that marriage is the union of one man and one woman and that sexual intimacy may occur only within that union. The general stance of Catholicism—and of Pride—on these issues is well known. White Rock Pride filed a complaint against Star of the Sea under the BC Human Rights Code, alleging discrimination in the provision of goods and services available to the public. The Society argued that Star of the Sea could not enforce its moral beliefs when renting the hall to the public, and disputed the view that Pride events contradict Catholicism. The BC Human Rights Tribunal, after being asked to dismiss the complaint for having no reasonable prospect of success, ruled that the case from 2005 does not definitively govern the present case. The Tribunal ruled that the case of White Rock Pride merits a full hearing. The hearing of this complaint is scheduled for January 2022.
The Tribunal has also allowed the BC Humanist Association to participate in the proceedings as an intervenor. The association describes itself as an “independent, non-partisan, registered charity that provides a community for the non-religious and campaigns for progressive secular values.” The association “supports a secular state where government institutions are strictly separated from religious organizations” and works “to promote progressive values, secularism and works to end religious privilege and discrimination based on religion and belief.” 17
Preferred Pronouns: Canadian Lawyer Magazine
In recent years we have witnessed as a potential cause for concern the addition of “gender identity” and “gender expression” to the list of prohibited grounds of discrimination in human-rights codes across Canada. Human-rights codes, broadly stated, prohibit certain kinds of discrimination in contexts such as employment, housing, and services available to the public. In our previous paper, we noted that the validity of any concerns about the addition of gender identity and expression to these statutes would depend on how courts and human-rights tribunals interpret these concepts of gender identity and expression, “particularly with respect to the nature of (and relationship between) sex and gender.” 18 In other words, much would depend on whether these bodies took a side in the larger debate on matters concerning transgender rights and required citizens to take the same side or suffer some sort of sanction. We also noted that an area to watch would be policies concerning the mandatory use of preferred pronouns. The Ontario Human Rights Commission, in its commentary on Ontario’s human rights code, continues to suggest that gender provisions could require an employer to accommodate a transgender employee by using the pronouns that the employee prefers. 19
In the short amount of time that has elapsed since we flagged our concerns on this topic, policies on preferred pronouns have become increasingly common, even appearing in unexpected contexts. In December 2020, the Supreme Court of British Columbia issued a practice direction to clarify “how parties and/or counsel can advise the Court, other parties, and counsel of their pronouns and form of address.” 20 The Court directed that at the beginning of any proceeding, when “parties or counsel are introducing themselves, their client, a witness, or another person, they should provide the judge or justice with each person’s name, title . . . and the correct pronouns to be used in the proceeding.” The Court also directed that if a “party or counsel do not provide this information in their introduction, they will be prompted by a court clerk to provide this information.” The use of the phrase “correct pronouns” rather than “preferred pronouns” in the practice direction is notable. There seems to be a qualitative difference between saying that the pronouns selected by each person are correct and saying that these pronouns represent this person’s perspective or preference. The state is arguably taking a side in the underlying philosophical and scientific debate on the meaning of sex and gender and is requiring citizens to endorse the same side in order to access the courts.
Shahdin Farsai, a lawyer in British Columbia, authored an opinion article in February 2021 that expressed concerns over the practice direction. The article appeared in Canadian Lawyer, a magazine that covers the Canadian legal profession and that “welcomes commentary and op-ed pieces from members of the profession, students, legal academics, judges, and others in the legal community.” In her article Farsai argued that directions of this sort “are potentially compelled speech in court, a breach of privacy rights, and damage the perception of judicial impartiality.” She noted that “preferred gender pronouns are unavoidably controversial and they are not universally accepted.” She went on to write that they are “part of a larger socio-cultural and legal debate over subjective gender identity versus objective sex—that is, as a biological reality that conforms to scientific evidence.” 21
Almost immediately after the article was published, fierce criticism of it emerged on social media. Several lawyers and legal academics, some of whom favour transgender rights, decried the article as offensive, transphobic, and harmful. Over two hundred members of the legal community signed a letter that was sent to the editor of Canadian Lawyer asking for the article to be removed from the magazine’s website. 22 Two days after the article was published, the magazine removed the article from its website. The editor-in-chief of the magazine noted that the article “did not reflect the views of Canadian Lawyer Magazine, Key Media and its related entities.” 23 After the removal of the article, certain of the individuals who had called for this step suggested that Canadian Lawyer would have to demonstrate how similar articles would be prevented from being published in the future. On social media, many individuals criticized the magazine’s decision to remove the article, describing the step as illegitimate censorship. 24
With the salient facts of these case studies in hand, we turn now to discussing how freedom of conscience should be better—indeed robustly—protected in a free and democratic society.
III. Robust Protection for Freedom of Conscience
For freedom of conscience to enjoy greater protection and respect in our society, a paradigm shift must occur in various contexts. Merely enacting legislation or ratifying policies that protect conscience will not suffice; there must also be a change in our personal attitudes on this issue. Before the law gets involved, we as citizens must learn, or relearn, the importance of conscience rights to the flourishing of the individual and society alike. Such a shift would mean that, in the case of Star of the Sea described above, for example, the complaint of White Rock Pride would not have been filed in the first place. The adage “live and let live” must be rediscovered and reaffirmed. It is easy to exhibit a “spirit of brotherhood” when we agree with each other. We must do the same even—and perhaps especially—when we disagree. Tolerance of beliefs that we reject or actively oppose is a key feature of a free and democratic society, not a sign that such a society is malfunctioning. Tolerance is a fixture of liberal democracy, not a discretionary benefit that the powerful grant to the powerless. Practicing tolerance is often a tall order, but avoiding the alternative—punishing those who dissent from the prevailing opinions of the day—is always a worthy pursuit.
The Supreme Court of Canada gestured to this relationship between conscience and flourishing in Big M Drug Mart, wherein the Court noted that an “emphasis on individual conscience and individual judgment” lies at “the heart of our democratic political tradition.” 25 Our ability to “make free and informed decisions,” the Court went on to say, is the “absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government.” 26 These sentences evoke the practice of free votes in Parliament on legislation that deals with sensitive issues, but the Court in Big M Drug Mart did not limit its discussion to the halls of power. The Court underlined 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.” 27 Notably, the Court appeared to suggest that freedom of conscience not only is guaranteed by s. 2(a) of the Charter but also somehow imbues all of the other fundamental freedoms in section 2: freedom of religion, thought, opinion, belief, expression, association, peaceful assembly, and the press.
How do we cultivate a social ecosystem in which conscience is, without recourse to litigation or legal processes, largely respected and afforded ample room to live, breathe, and move? In fairness, it is probably the case that this ecosystem already exists in Canada, at least to a certain extent. Each of us acts on conscience on a daily basis, often without being acutely aware that we are doing so. Many of our conscientious decisions are respected by others, often without their being acutely aware that they are respecting conscience. The challenge for freedom of conscience arises when our conscientious convictions happen to deviate from the majority’s opinion on a given issue. Where the issue is seen by the majority to implicate rights, the challenge becomes trickier.
Beyond legislative or policy choices, we must first and foremost rediscover the notion that the principle of tolerance—that idea of live and let live—is fundamental to the “free and democratic society” that Canada aspires to be. 28 Tolerance is by nature an uncomfortable principle, for it asks us to permit the manifestation of viewpoints that we consider to be offensive, wrong, and even abhorrent. Of course, the freedom to manifest these viewpoints cannot be absolute; the state’s ability to place reasonable limits on rights and freedoms is essential to liberal democracy. But for freedom of conscience to meaningfully exist and function, we must be prepared to allow beliefs and convictions that diverge from ours to have a place in the public square. We would expect the same courtesy whenever the tables are turned, especially when the convictions are rooted in conscience and therefore engage our integral humanity. Besides common courtesy, the reality is that this way of living together sits at the heart of liberal democracy. It is one of the conditions of being a member of such a society. At times we enjoy the benefit of this condition, and at other times we bear its burden.
If this grassroots rediscovery of tolerance does not occur, and tolerance thereby fades further and further out of view, our society will inevitably gravitate closer and closer to the so-called tyranny of the majority, or at least to the tyranny of the intolerant minority within the majority. Such a state of affairs not only is antithetical to the essence of liberal democracy but also runs the risk of creating a vicious cycle, in which today’s tyrannized minority will be tempted to become tomorrow’s tyrannizing majority. Human nature, we can all agree, is flawed. We would do well to avoid inviting these human frailties to take centre stage and become unbridled. The case of Shahdin Farsai, whose article in Canadian Lawyer magazine was ultimately removed due to an outcry emanating from antipathy toward her point of view on mandatory pronoun policies in courtrooms, would not be a case available to study if the tolerant and liberal democratic atmosphere that we call for in this paper were already firmly in place. We hope that, in the future, such will be the case.
Apart from the matter of conscience treated by her article, Farsai’s case reveals that freedom of conscience plays a vital role in a society that aspires to be just, equitable, and good. Freedom of conscience intersects with freedom of expression insofar as these two fundamental freedoms permit open debate in the public square on matters of fundamental importance. Matters of conscience engage matters of right and wrong, true and false, good and evil. For a society to move toward the right, true, and good, there must be ample room for citizens to express their opinions and beliefs on matters of conscience. Where freedom of conscientious expression on matters is unjustly suppressed, the potential lessons to be learned and wisdom to be gained from the content of the expression are lost. Private media outlets are certainly entitled to choose which opinions they will publish and not publish, but in a liberal democracy they should strive for even-handedness and it should only be in the rarest of cases that published opinions are subsequently deleted. Farsai’s article is a far cry from one of these rare cases.
As for how a rediscovery of tolerance and other cornerstones of liberal democracy can occur, we must engage each fellow citizen of goodwill, in good faith, to remind them (and ourselves) of these first principles of the sort of society that we desire. This essay serves as just one medium by which to undertake this engagement. The provision of space by media outlets for opinions that cut against the prevailing or popular opinion on a given matter is another way to reaffirm our basic commitment to discourse and debate, rather than coercive and dictatorial approaches, on matters of shared concern.
What is most important is that discourse on tolerance and other bedrock principles of liberal democracy take place across and throughout society, from the halls of power to university classrooms to workplace corridors and beyond. These bedrock principles are being increasingly forgotten or ignored, to the detriment of many unpopular viewpoints today. Should these principles fade too far out of view, we fear that the unpopular viewpoints of tomorrow and beyond will also be prone to suppression and that the persons who hold them will be subjected to ostracization.
If the rediscovery of the essential ingredients of a free and democratic society occurs through civil discourse and debate, many if not all of the remaining recommendations in this paper—all of which implicate state action—will not be necessary. We recognize that such a comprehensive shift in attitudes and dispositions among the citizenry is not likely to occur without state-sponsored safeguards, but it is also true that any movement in this direction, no matter how small, will only better the prospects for freedom of conscience in Canada.
Create Conscientious Objection Policies Within Health-Care Professions
Besides the need to increase and enhance our public discourse on freedom of conscience as a means to change our attitudes and everyday behaviour in respect of this fundamental freedom, there is certainly a role for legislation and public policy to play. Beginning with health care, the field in which controversy over freedom of conscience most often arises today, we call on regulators of the various health-care professions—physicians, nurses, pharmacists, and others—to craft and adopt robust conscientious-objection policies.
By robust, we mean policies that encompass the freedom to refuse to provide referrals for procedures or prescription drugs in addition to the freedom to refuse the actual provision of these procedures or administration of these drugs. In general, across Canada the current state of affairs on this front is that health-care workers may conscientiously refuse to perform certain procedures or prescribe certain drugs. The main point of contention, however, is referrals. Referrals are problematic for some health-care workers because, in their view, they amount to material cooperation—significant complicity—with immoral or unethical activity. The proximity of a referral—finding a person willing to perform the procedure—to the procedure itself lends credence to this view about complicity. Alternatives to mandatory referrals for procedures that commonly attract conscientious objection can reconcile patient access to the full range of lawful services with the moral and ethical freedom of health-care workers to avoid becoming complicit in delivering them.
Care Coordinator Services and Online Registries
Given that the procedures or drugs that often attract conscientious objection are easily identifiable, one alternative to referrals is a public office to manages controversial procedures. For assisted suicide, Alberta created a “care coordination service” to facilitate access to this procedure. 29 Another option, which appears to be not yet implemented in Canada, is to create an online database that can indicate which physicians are willing to perform particular procedures that attract conscientious objection. 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. 30 It would not be onerous to add search criteria for the relatively few services that are known to attract conscientious objection. Each of these policy options inflicts less harm on the freedom of conscience of health-care workers than do obligatory referrals. They are, by all accounts, inexpensive and effective. There is no evidence that these measures would impair access to procedures or that they would be inferior in this regard when compared to referrals.
Care coordination services and online registries can function well in cities and suburbs but not in rural locations where no doctor will perform assisted deaths or refer for this procedure. Some might argue that, in these circumstances, the doctor must at least refer for the procedure—if not perform it. Or perhaps the state should pay to bring a doctor to that community to perform these procedures when they are requested. We would argue, however, that 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 travelling elsewhere for procedures that are not available in their community. Neither health care in general nor specific procedures that are delivered through the health-care system are freestanding Charter rights. While some may find it odd that a standard of delivery for procedures such as abortion and assisted suicide would differ from the standard for chemotherapy or open-heart surgery, such an approach does seem to be available to the state.
Some will argue that the state should not be expected to pay for a doctor to visit a rural community when another doctor already works there but conscientiously refuses to perform a procedure. The state, however, does not force health-care 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 health care in general or to specific health-care services, the justification for limiting the freedom of conscience of that doctor appears to be absent. The norm in Canada—and in most other liberal democracies—is to allow physicians to conscientiously refuse to perform procedures, regardless of where the physician resides. According to the mandatory “effective referral” policy in Ontario that has generated litigation, the only doctor in a small town may conscientiously refuse to perform a procedure (as long as he refers). 31 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.