When Rights Collide: Liberalism Pluralism and Freedom of Religion in Canada

• Author: Alex Fielding
• Position: Is a third year student at the University of Victoria, Faculty of Law, and will be articling with Stikeman Elliott LLP (Vancouver) in September 2008
• Pages: 28-50

28 n APPEAL VOLUME 13

ARTICLE

WHEN RIGHTS COLLIDE:

LIBERALISM, PLURALISM AND FREEDOM OF

RELIGION IN CANADA

By Alex Fielding*

CITED: (2008) 13 Appeal 28-50

ABSTRACT

In a time where the inf‌lux of immigrants with diverse religions conf‌lict with the laws of the

majority, the question of how to live together in disagreement when Charter rights collide goes

to the heart of pluralism, the ‘common good’ and the modern liberal exercise in Canada. The

recent debates over sharia tribunals, faith-based education, same-sex marriage, and the accom-

modation of religious marriage commissioners illustrate the diff‌iculties in balancing the religious

and ‘secular’ in the public sphere.

This paper looks to liberal theory, freedom of religion jurisprudence, and contemporary

thinkers for answers to these timely questions. It advocates for a more deferential, accom-

modating form of liberalism along the principles of modus vivendi where individual rights are

limited only to the extent that they infringe on the rights of others. By moving away from the

vague, all-encompassing language of “Charter values” to John Stuart Mill’s harm principle,

we create a more pluralistic public sphere that gives reasons for religious minorities and ethnic

groups to reciprocate such tolerance and participate actively in civil society. If we relegate such

views to the private sphere by imposing a ‘rational consensus’ on a divided public, we do so at

our peril. For it will further fragment the civic fabric of Canadian society into scattered islands

of faith communities, leaving all sectors impoverished.

* Alex Fielding is a third year student at the University of Victoria, Faculty of Law, and will be articling with Stikeman Elliott

LLP (Vancouver) in September 2008. The author would like to thank Iain T. Benson of The Centre for Cultural Renewal

(Ottawa) and Professors Benjamin Berger and Gillian Calder at the University of Victoria, Faculty of Law, for their ideas,

guidance and encouragement in writing this paper.

APPEAL VOLUME 13 n 29

INTRODUCTION

Liberalism is not a possible meeting ground for all cultures; it is the politi-

cal expression of one range of cultures and quite incompatible with other

ranges…Liberalism is also a f‌ighting creed1 – Charles Taylor

Here I stand, I can do no other2 – Martin Luther

On the 25th anniversary of Canada’s Charter of Rights and Freedoms (“Charter”), the

entrenchment of individual rights, the strategic litigation that followed and the policy-laden

decisions of the Supreme Court have left some groups rejoicing with others shaking their heads

(and pulpits). The rights of women,3 gays and lesbians,4 off‌icial language minorities5 and the

criminally accused6 have arguably been accelerated beyond what reluctant legislatures would

have enacted. On the other hand, the Charter has largely been a disappointment for a range

of sectors like poverty advocates,7 law enforcement,8 racialized groups9 and many religious

groups.10 Religious leaders would have been shocked had they known in 1982 that this liberal

rights document would be the catalyst, and in some cases impetus, for extending civil marriage

to gays and lesbians, quashing a school board’s decision not to license books depicting homo-

sexual relationships, compelling a religious private printer to serve a gay advocacy organization,

and striking down legislation that prohibited Sunday trading.

The development of freedom of religion jurisprudence under the Charter has left the Ca-

nadian state, judiciary, and society at large grappling with some fundamental questions. How

do we balance the equality rights of gays and lesbians asserted under s. 15 with the religious

freedoms of marriage commissioners protected under s. 2(a)? How can we reconcile temporal

and divine sources of authority when the rule of law and the supremacy of God collide? How

can a “secular” state encourage religious diversity, pluralism and the “common good”? Such

questions depend on how they are framed and how we def‌ine and understand liberalism, plu-

ralism, the ‘secular’ and the rule of law. In a time where the rights of same-sex couples and the

freedoms of religious groups have come to a head, and where the inf‌lux of immigrants with

diverse religions conf‌lict with the laws of the majority, this question of how we live together

in disagreement goes to the heart of pluralism, the ‘common good’ and the modern liberal

exercise in Canada.

1 Charles Taylor, “The Politics of Recognition” in Charles Taylor ed., Philosophical Arguments (Cambridge: Harvard Univer-

sity Press, 1995) at 249.

2 Martin Luther, Speech to Diet of Worms, 1521.

3 See R v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385; Brooks v. Canada Safeway Ltd, [1989] 1 S.C.R. 1219, 59

D.L.R. (4th) 321; R. v. Butler, [1992] 1 S.C.R. 452, S.C.J. No. 15, but, see contra Newfoundland Association of Public

Employees (NAPE) v. Newfoundland 2004 SCC 66, [2004] 3 S.C.R. 381; Law v. Canada, [1999] 1 S.C.R. 497, 170 D.L.R.

(4th) 1; Hodge v. Canada (Minister of Human Resource Development), 2004 SCC 65, 244 D.L.R. (4th) 257.

4 See Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Halpern v. Canada (Attorney Gen-

eral), [2003] 225 D.L.R. (4th) 529, O.J. No. 2268; EGALE Canada Inc. v. Canada (Attorney General), [2003] 225 D.L.R.

(4th) 472, B.C.J. No. 994; Brockie v. Ontario (Human Rights Commission), [2002] O.J. No. 2375, 222 D.L.R. (4th) 174;

Vriend v. Alberta, [1998] S.C.J. No. 29, [1998] 1 S.C.R. 493; Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609;

Re Rosenberg et al. v. Attorney General of Canada, 38 O.R. (3d) 577, 158 D.L.R. (4th) 664.

5 See R. v. Beaulac, [1999] 1 S.C.R. 768, 173 D.L.R. (4th) 193.

6 See R. v. Feeney, [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609; R v. Stinchcombe, [1991] 3 S.C.R. 326, [1992] 1 W.W.R. 97;

R. v. Collins, [1995] 2 S.C.R. 1104, 183 N.R. 285.

7 See Gosselin v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 S.C.R. 286.

8 See supra note 6..

9 See R. v. R.D.S, [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193.

10 See Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Halpern v. Canada (Attorney Gen-

eral), [2003] 225 D.L.R. (4th) 529, O.J. No. 2268; Brockie v. Ontario (Human Rights Commission), [2002] O.J. No. 2375,

222 D.L.R. (4th) 174; Reference Re Same Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698.