The Courts' Spectacles: Some Reflections on the Relationship between Law
and Religion in Charter Analysis
Reasonable Accommodation and Role of the State: A Democratic Challenge
CIAJ Conference: September 24, 2008, Quebec City
Reproduced with permission
Mr. Justice David M. Brown1
The main point which I wish to make in this paper is
that when courts engage in this "managing" exercise they do not operate as
philosophically-neutral actors. Instead, the case law reveals that they perform
the "managing" exercise through philosophical lenses that are not blank, but
reflect philosophical choices which inform their balancing task.
In Canada we enjoy a vibrant and vigorous freedom of religion and conscience,
the product of legislative action - e.g. human rights codes - judicial
decisions, and a common sense ethos possessed by most Canadians who try to live
together as good neighbours. One sign of the health of Canadian
political culture is that we continue to debate the broad parameters, as well as
the particular details, of religious liberty. CIAJ conferences have
gained a reputation as places which foster the free exchange of ideas.
In keeping with that spirit of debate, I wish to offer several ideas for
consideration on the topic of this panel, "Religious
Neutrality: A Matter of State?" My fellow panellists have touched on
the international dimensions of the topic; my focus will be on the domestic,
specifically the role played by Canadian courts in dealing with this issue.
Almost six years ago the Chief Justice of Canada, Beverley McLachlin, gave a
paper at McGill University, entitled "Freedom of Religion and the Rule of Law",
in which she argued that when dealing with religious freedom courts are "in the
unique position of managing a dialectic of normative commitments".2
The main point which I wish to make in this paper is that when courts engage
in this "managing" exercise they do not operate as philosophically-neutral
actors. Instead, the case law reveals that they perform the
"managing" exercise through philosophical lenses that are not blank, but reflect
philosophical choices which inform their balancing task.
In the case of freedom of religion, Canadian courts most often engage in this
balancing exercise in the context of their "reasonable limits" analysis under
section 1 of the Canadian Charter of Rights and Freedoms.
Section 2 of our
Charter guarantees certain fundamental freedoms to every person,
including "freedom of conscience and religion". However, section 1
provides that all guaranteed freedoms are subject to such "reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society". The quarter century of case law under the Charter
has demonstrated that courts tend to give expansive interpretations to the
content of the freedoms secured by section 2, and then turn to section 1 to
perform the balancing between those freedoms and other interests that arise in a
In my view, philosophical perspectives - stated or unstated - influence how
courts conclude whether restraints on religion are justifiable. In this paper I
identify six of those perspectives that have emerged in the case law or legal
(i) the characterization of religion as a species of the modern value of
(ii) the notion that religious practice is a 'very different matter' than
religious belief, thereby suggesting that religious practice may be subjected to
greater restraints than belief;
(iii) the claim that the rule of law constitutes an all-encompassing belief
system that can make prior claims on all aspects of human existence;
(iv) the lingering notion that a secular government is a
(v) equating "society" with the government in section 1 analysis; and,
(vi) the prevailing legal position that public morality in Canada rests on a
foundation of utilitarianism.
I should emphasize that my purpose in this paper is limited to identifying
some of the philosophical lenses which courts bring to an examination of freedom
of religion and then presenting contrasting commentaries offered by others on
each lens. I will not engage in a detailed critique of each lens,
nor will I advance a preferred solution to the issues raised.
Moreover, I have not attempted to craft some over-arching analytical paradigm in
which to assess the impact of these lenses on religious freedom. I
suspect some will regard this paper as somewhat disjointed, and they will not be
wrong. My goal for this paper is more limited in scope:
by identifying issues that sometimes go un-stated or unrecognized by the courts,
I hope to stimulate a more direct recognition and treatment of them in future
cases as courts encounter claims involving a religious dimension.
II. The first lens: Religion as a species of autonomous choice
While the concept of religion may defy precise definition, its basic place in
human life was captured by the English philosopher Roger Scruton in this short
passage where he contrasts the religious worldview with that which has emerged
from the Enlightenment:
Religion is a stance towards the world, rooted in social membership, and
influencing every aspect of the experience, emotion and thoughtâ€¦
Religious people see the world in a way that enlightened people may not
see it. Not only do they possess faith, belief in the transcendental
and hopes and fears regarding providence and the afterlife. Their
world is parceled out by concepts of the holy, the forbidden, the
sacred, the profane and the sacramental. These concepts may be absent
from the intellectual life of faithless people.3
Richard Dawkins, in his recent apologia, The God Delusion,
accepts such a characterization of the religious person, at least by way of
contrast with the rational one, painting the difference between the atheist and
the religious believer as follows:
An atheist in this sense of philosophical naturalist is somebody who
believes there is nothing beyond the natural, physical world, no
supernatural creative intelligence lurking behind the observable
universe, no soul that outlasts the body and no miracles - except in the
sense of natural phenomena that we don't yet understandâ€¦
The metaphorical or pantheistic God of the physicists is light years
away from the interventionist, miracle-wreaking, thought-reading,
sin-punishing, prayer-answering God of the Bible, of priests, mullahs
and rabbis, and of ordinary language.4
To whichever starting point one is attracted - that of Scruton or that of
Dawkins - the end point is the same: religious believers stand on a different
philosophical footing than others. Precisely because of such
differences, the distinction between religious believer and non-believer
possesses practical, and immediate, political and legal implications.
How has Canadian law dealt with this "otherness" of the religious believer?
In a perceptive article Benjamin Berger argues, persuasively in my view, that
Canadian constitutional law has cast the unfamiliar "otherness" of religion into
terms more familiar and compatible with its structural and normative assumptions
informed by the contemporary political culture of liberalism.5
His analysis of Canadian constitutional decisions leads him to conclude that
Canadian courts have constructed a picture which regards religion as essentially
individual, private, and addressed to notions of autonomy and choice.6
At the core of this conception, according to Berger, rests the liberal emphasis
commitment to the goods of autonomy and individual liberty as the
mechanism for human flourishing. Liberalism understands the individual
as best served when left to his or her own devices and free to make his
or her own choices, unencumbered by contextual constraints...
liberalism takes the view that the individual is best able to flourish
when left to exercise free choice with respect to the good.7
By creating religion in its own image, so to speak, constitutional law
renders religion into "a highly digestible state",8
all the while allowing the law to "remain agnostic to the good - as to meaning."
The price of this effort to hammer the square peg of religion into the round
hole of autonomous choice is two-fold. First, it results in a
judicial reluctance to recognize the social and cultural dimensions of religion.
As Berger concludes, "even if successful at accommodating or tolerating what it
understands to be religion, aspects of religion as culture remain entirely
unattended to and, therefore, unresolved in their tension with the
constitutional rule of law."10
Second, the law's characterization of religion as "just another choice"
strongly influences how the law manages the relationship between religion and
the state. Berger argues that the law's painting of religion as
another kind of choice made by an autonomous individual potentially forecloses
avenues of discussion about religious freedom. In the same vein John
Finnis has argued that any hope for discussion about an overlap between reason
and faith risks early derailment if one presumes that no religion's claims about
God, man, the world and society are reasonable, that religion's claims add
nothing to what is established in moral or political philosophy, or if
religion's status is regarded as nothing more than one way of exercising some
fundamental right that lies at the heart of a liberty interest.11
As Finnis puts it:
These celebrations of the right to "decide for oneself" and "define
one's own concept" trade, as we shall see, on an important truth. But they
abandon reason when they assert that the relevant intelligible and basic
good in issue is not the good of aligning oneself with a transcendent
intelligence and will whose activity makes possible one's own intellect and
will, nor even the good of discovering the truth about some meaningful and
weighty questions, but rather the good of self-determination or
self-respect. For these are no true goods unless the goods around which
one determines oneself deserve the respect due to what is true, rather than
III. The Second Lens: Is Religious Practice 'A Very Different Matter'?
One only need scratch the surface of religions to discover that most are not
simply religions of belief, but also religions of practice. That
religious belief and practice are "inherently related"13
should come as no surprise. Religion is not a purely private matter
because man intrinsically is a social, not a solitary, being.14
In their treatment of freedom of religion international declarations and
conventions recognize the social reality of the integration of religious belief
and its manifestation through practice, and they protect both.15
In the Trinity Western University v. British Columbia College of Teachers
case, however, the Supreme Court of Canada characterized religious practice as
a "very different matter" than religious belief, with the result that "the
freedom to hold beliefs is broader than the freedom to act on them".17
To the extent this observation simply was a statement that thought kept to
oneself is a different kind of human activity than thought manifested in
practice, it states the obvious. If, however, the observation
suggests that different degrees of legal protection should accrue to religious
belief and religious practice because of some intrinsic difference between the
two, then I think the view misapprehends the social reality of religious faith.
Courts tend to display unease about entering into the realm of claims
involving religious practice. Again, Berger offers insight on this
issue. He contends that the reason the jurisprudence "manifests a
degree of comfort with religion as belief and displays a kind of anxiety and
awkwardness with religion as practice"18
can be traced to the liberal framework of constitutional rights:
As belief only, religion is a preference that remains solidly and
unproblematically within the realm of the personal. Once released into
action, however, it might seep into the public, where interest and
preference have a troublesome presence.19
Martha Nussbaum, in her new book, Liberty of Conscience: In Defense of
America's Tradition of Religious Equality, argues for a
broad protection for religious freedom:
Liberty, or the free exercise of religion, means being able to follow
one's own conscience in matters of religious belief and - within limits
set by the demands of public order and the rights of others - religious
conduct. One thing that the religion clauses do is to protect areas of
liberty within which people can hold different beliefs and also exercise
So, whatever comfort might accompany relegating religion to the theoretical
realm of thought and belief, such a jurisprudential approach risks ignoring the
reality of the subject of its inquiry. Precisely because faith is
practised in public, questions necessarily arise about the appropriate limits
the law may place on the exercise of freedom of religion. In
answering those questions one cannot justify limits by rationalizing that
constraints on religious practice do not interfere to the same degree as limits
on religious belief.
More importantly, to the extent that courts engage in "managing dialectic
commitments", resorting to an analytical paradigm that espouses a stark
belief/practice dichotomy may limit the courts' ability to recognize the proper
dimensions of the legal problem they are asked to adjudicate. I turn
once more to Roger Scruton who describes the practical limits of an approach
based on a belief/practice dichotomy:
It is partly a result of the Enlightenment view of
religion that we believe that we can solve the
problems caused by secularization simply by granting
religious freedom. If religion is primarily a
matter of belief and doctrine, then by allowing
freedom of belief, and freedom to discuss and
proselytize, it is thought, we ensure that people
will make their own religious space, communities
will be able to worship god in their own way, and
rival faiths will live side by side in mutual
toleration. However, the Enlightenment view is
profoundly wrong. Belief and doctrine are a part
of religion, certainly; but so too are custom,
ceremony, ritual, membership, sacrifice, the
division between sacred and profane and the visceral
hostility to sacrilege. By allowing religious
freedom we do nothing to create a public world in
which religious communities can feel truly at home.21
IV. The Third Lens: The Ambit of the claims of the law
Turning to the third issue - the scope of the claims of the law - let me
refer to two contrasting views. In her 2002 McGill speech Chief
Justice McLachlin argued that the authority claimed by the law "touches upon all
aspects of human life and citizenship."
The Chief Justice contended that the rule of law is "an all-encompassing
authoritative system of cultural understanding".23
Religion, too, she acknowledged, also makes comprehensive claims on the
individual believer. In her view, one deals with two such
comprehensive systems by having the courts find "in the comprehensive claims of
the rule of law, a space in which individual and community adherence to
religious authority can flourish".24
University of Toronto Professor David Novak argued to the contrary in his
2005 book, The Jewish Social Contract: An Essay in Political Theology.25
He contended that an historical, religiously constituted community asks for more
than tolerance from society; it asks for the respect of its ontological
Religious freedom, according to Novak, stands as a right existing prior to the
power of the state; it is not simply an entitlement from the state. Novak argued
that "the hallmark of a democratic social order is the continuing limitation of
its governing range"27 and that a
democracy "ought never regard its programs, no matter how serious, of ultimate
importance in the lives of its citizens."28
The contrast between these two visions is stark. It should be
evident that a court approaching the task of fashioning reasonable limits on
religious liberty under section 1 of the Charter using the Chief
Justice's paradigm will begin from quite a different philosophical starting
point than that presented by Professor Novak.
There is a second dimension to the question of the respective ambits, or
spheres, of law and religion - the place of the religious voice in the debate
and determination of public policy. John Rawls has exerted the
greatest influence in contemporary thinking in this area. In
Rawls proposed the principle that political questions which touch on
constitutional essentials, or basic questions of justice, will be settled
legitimately only if the decision-makers reach their decisions using public
reason. Public reason is the set of reasons that all citizens "may
reasonably be expected to endorse", the set of reasons which are acknowledged as
good reasons by an "overlapping consensus of all reasonable people".
The truth or correctness of these reasons is of secondary concern; of more
importance is observing a principle of reciprocity under which the reasons
employed and decisions made on basic questions must be reasons and decisions
that the decision-makers believe could reasonably be accepted by other people as
free and equal citizens. Initially Rawls excluded from the process
of public reasoning what he called "comprehensive doctrines", which included
religious doctrines. He later revised his position to permit the
introduction of "reasonable" comprehensive doctrines into public reason provided
that, in due course, "public reasons, given by a reasonable political
conception, are presented sufficient to support whatever the comprehensive
doctrines are introduced to support".30
The Supreme Court of Canada has not often directly considered the extent to
which comprehensive doctrines, such as those resting on religious beliefs, may
play any role in discussing constitutional essentials or basic questions of
justice. In Chamberlain v. Surrey School District No. 3631
the Court acknowledged that because religion is an integral aspect of people's
lives, religious concerns do have a place in the deliberations on public
questions - religion "cannot be left at the boardroom door".32
However, the Court continued its analysis by suggesting that on matters of
public policy religious concerns cannot exclude the concerns of other members of
the community, concluding with a somewhat enigmatic principle of public
decision-making under which "each group is given as much recognition as it can
consistently demand while giving the same recognition to others."
An approach to public decision-making employing an "overlapping consensus"
possesses a certain attraction. On its face it seems fair and
practical. But it contains its own philosophic assumptions which
impose their own limits. John Finnis has been a trenchant critic of
Rawl's principle of overlapping consensus. Two of his criticisms
merit particular attention when trying to assess whether a "comprehensive
doctrine-lite overlapping consensus" provides a sound way for engaging in public
decision-making, including balancing interests under section 1 of the Charter.
First, Finnis points to the limits inherent in the principle of overlapping
consensus. He argues that it stands in opposition to the need for
sound reasons in support of a decision,34
and that it is especially unreasonable that the truncation of reason's reach, or
of conscience's judgment, by the requirement of consensus should apply precisely
in relation to the most important political matters, such as basic human rights.35
Second, Finnis suggests that sound reasons in support of a decision may well
rest within a comprehensive doctrine. He throws out a provocative
question: can sufficient grounds for an uncompromising adherence to human rights
exist once it is denied that the existence of human persons begins and is lived
in radical dependence upon an utterly transcendent and freely creative
intelligence and providence?36
Can one glean from the Charter's language any clue to help in
choosing between these contending visions of the ambit of law and religion and
the place of comprehensive doctrines in the making of public decisions?
The Charter opens with a Preamble:
Whereas Canada is founded upon principles that recognize the supremacy
of God and the rule of law . . .
A number of years ago I suggested that the language of the Preamble might
provide a way to avoid legal enmity between the secular and the divine, and I
pointed to the opening language in Pope John Paul II's work, Faith and
Reason, as presenting a complementary, rather than an antagonistic,
view of the relation between the two: "Faith and reason are like two wings on
which the human spirit rises to the contemplation of truth".
37 More recently, Professor Bruce Ryder, of Osgoode
Hall Law School, has argued that the Preamble's principle of the 'supremacy of
God' represents "a kind of secular humility, a recognition that there are other
truths, other sources of competing world views, of normative and authoritative
communities that are profound sources of meaning in people's lives that ought to
be nurtured as counter-balances to state authority."
Professor Ryder's analysis is intriguing and suggests, perhaps, that the
to the Charter offers rich food for future thought about the
appropriate starting point for any interpretive approach for section 1 of the
Charter, especially when issues of the relationship between the law
and religion are in play.
V. Fourth Lens: The neutrality of the state
One often hears the state described in terms of neutrality. The
state, or government, in its formulation of policy and law usually does not
operate in a philosophically or morally neutral way. Indeed, it
would be fanciful to describe any human institution, including the government
and its agencies, as neutral; any human institution by its nature will possess a
point of view reflective of the thinking of its directing members.
Translated into the realm of religious freedom, the lack of neutrality of
state actors has been recognized, in slightly different ways, by Charles Taylor
and Roger Scruton. Taylor, in his recent book, A Secular Age,39
traces the place of the secular, or temporal, through the ages. In
a review essay of the book, Wilfred McClay summarized Taylor's argument in the
Gradually, by a succession of smaller steps, this state of affairs led
to modern secularity, where we see for the first time in human history a
form of "exclusive humanism" that accepts "no final goals beyond human
flourishing, not any allegiance to anything else beyond this
flourishing." There is no more grounding of the political or social
sphere in the "higher time," since the overwhelming "horizontal" texture
of such a world simply crowds out the transcendent and the sacred, or
renders them extraneous. 40
Scruton also points to the absence of the transcendent as a key
characteristic of modern political and legal culture, but argues that in more
recent times an indifference to the transcendental has given way to a hostility
Western societies are organized by secular institutions, secular customs
and secular laws, and there is little or no mention of the
transcendental either as the ground of worldly authority or the ultimate
court of appeal in all our conflicts. This situation is not new: it
was with us in the nineteenth century, when it co-existed with
widespread religious faith among the people, and a respectful scepticism
among the elite. New, however, is the widespread repudiation of the
sacred - the chasing away of divine shadows from the life of the city,
the life of the body, the life of the emotions and the life of the mind.
In the Canadian context, Iain Benson
and Douglas Farrow
have both argued how unrealistic it is to continue to regard the labels of
"secular" or "secularism" as guarantees of state philosophical neutrality.
While state policy by its nature may not be philosophically neutral, the
practical question remains of the manner in which the state resolves matters
arising along its interface with religion. Government policy and law may stand
in one of three relationships with religions:
(i) government policy may not touch at all upon matters of interest to
religions, operating instead within a sphere separate from religion;
(ii) government policy may touch upon matters of interest to religions,
but in a way that complements, or supports, them; or
(iii) government policy may touch upon matters of interest to
religions in a way that conflicts with them, in the sense of contradicting
them, imposing some burdens on them, or denying them some benefits by reason
of the positions taken by religion.
Where government policy touches upon matters of interest to religions, what
stance should it take? Variants of an "equal treatment" argument
have been advanced as solutions to the issue. In Big M Drug Mart,
for example, Dickson C.J. hinted at a notion of equality amongst religions as a
necessary principle informing government policy.
Martha Nussbaum recently fleshed out this point of view, arguing that the basic
principle informing the American tradition of religious freedom is that of
Insofar as it is a good, defensible value, the separation of church and
state is, fundamentally, about equality, about the idea that no religion
will be set up as the religion of our nation, an act that immediately
makes outsiders unequal. Hence separation is also about protecting
religion - minority religion, whose liberties and equalities are always
under pressure from the zeal of majorities. Protecting minority
equality in religious matters is very important because religion is very
important to people, a way they have of seeking ultimate meaning in
their lives. If religion were trivial, it would not be so vitally
important to forestall hierarchies of status and freedom in religious
Of course, if the objective of equal treatment is to ensure that government
policy does not render certain groups of people "outsiders" by treating them as
unequal, then the equality principle would have to regulate not only the
relations between government and religions, but also the relations between the
government and any philosophical point of view, religious or non-religious.
That is to say, limitations could only be justified on religious belief or
practice if similar limitations were placed on non-religious beliefs or
practices. In other words, to operate in a neutral, or even-handed
way, the principle of equality would have to ensure that religion secured no
special privilege vis-Ã -vis government policy, but at the same time was
not subject to any special burden.
While theoretically attractive, the equality principle has proven somewhat
problematic in practice. We can see this in the arguments commonly
made for two exceptions to a principle of state neutrality, or equal treatment,
of religion. First, Canadian jurisprudence has fashioned a principle
of accommodation which exempts certain religious believers from the effect of
facially neutral laws. In a very real sense this affords a special
privilege to religion. Nussbaum argues that good reason exists for
such a privilege, contending that accommodation, as a form of non-neutrality,
sometimes is required by equality because of the importance we attach to the
protected sphere of individual conscience, itself a central dimension of human
The second exception operates in the other direction. Nussbaum, for example,
argues that equality "does not imply that all religions and views of life must
be (equally) respected by government: for some extreme views might contradict,
or even threaten, the very foundations of constitutional order and the equality
of citizens within it."
47 Finnis, too, posits that some discrimination might
be justified amongst religions if a religious culture displayed a disrespect for
equality or for freedom from coercion in religious belief.48
Great care must be taken, however, in applying this second exception.
While it may appear uncontroversial to some to impose limits on religion where
it poses a threat to the foundations of the constitutional or public order, the
concepts of "constitutional order" and "public order" can be made quite
malleable. Real risks exist about too easily re-casting conflicts
between public policy and religion into questions involving threats to the
foundation of the constitutional or public order in order to justify limits on
religion. One need look no further than the debate between the
majority and minority in the Supreme Court of Canada's decision in Bruker v.
where one group of judges saw its decision as a minor re-shaping of a
religious practice to conform with contemporary public policy, whereas the other
regarded it as an impermissible entanglement of the law in religious affairs.
So, where are we left on this issue of state neutrality? The
formulation of law and policy necessarily involves making normative choices.
Not all will agree with those choices. Some of those choices will
conflict with profoundly held religious beliefs of some Canadians.
The problem was put well by Professor Steven Smith in his review of Nussbaum's
The modern political problem - the problem of e pluribus unum
- is to devise ways of maintaining community in a pluralistic society in
which citizens have an equal right to adhere to and express their beliefs
but in which, inevitably, not all deeply held beliefs will be consistent
with those expressed by government. It is, to be sure, a daunting problem.50
Perhaps even an intractable problem. But when approaching this
problem in the context of conducting a section 1 analysis in cases that engage
religious liberty, in my view it is important for courts to recall that
characterizing a government limitation as "neutral", or "secular", does not
provide a realistic way of examining the problem. Such labels hide,
rather than reveal, the true concerns that must be addressed by the judicial
VI. Fifth Lens: The state as government
The fifth philosophical lens influencing the consideration of justifiable
limits on religious freedom involves the meaning attributed to section 1 itself.
The title for this conference suggests that the "state" affords reasonable
accommodation to religion. What, then, is the state?
Typically, the state most often is equated with the government.
Certainly branches of the government - legislative, executive and bureaucratic -
formulate, propose and implement policies and laws which, in their intended or
unintended effects, may come into conflict with religions. Such
policies and laws may reflect the thinking of large segments of the Canadian
populace, or may be the products of limited segments of the government
apparatus. Whichever they may be, there is a strong temptation in
Canadian constitutional law to pit religion, on the one hand, against a very
institutional conception of the state, on the other, and to regard the process
of justifying limits on religious freedom as entailing an examination of
government policy alone. To some extent, this is the natural result
of some language in the Charter under which judicial review of a potential
infringement is only triggered if one can point to some act or omission by
"government" and some limitation "prescribed by law".
But section 1 of the Charter talks not only of limits "prescribed by
law", or law-makers, but of justifications that are measured in relation to the
concept of "a free and democratic society". That is to say, the
process of infringement/justification balancing must be located in the broader
context of persons and society, and not simply placed within the confines of the
familiar Oakes gloss on section 1 which focuses on government action,
government objectives and government means. I put out for discussion
the question of whether or not the Oakes test obscures the larger context
created by the language of section 1 where the Charter directs a balancing
of the interests of one person with those of many persons, that is with
"society". Simply put, while the "society" referred to by section 1
of the Charter certainly contains a political dimension - free and
democratic - "society" is not co-terminous with government. Or, to
frame the question another way, is it a departure from the language of the
Charter to view a section 1 exercise as balancing the interests of a
religious person against the interests of a non-religious government, or should
the section 1 balancing exercise be regarded as more akin to considering the
interests of a religious person together with those of a multi-dimensional
society which includes other religious believers as well as non-believers?
This question, I think, prompts some reflection on Professor Berger's
observation that Canadian jurisprudence does not actually understand religion as
culture except in impoverished terms.52 Berger concludes that "even if
successful at accommodating or tolerating what it understands to be religion,
aspects of religion as culture remain entirely unattended to and, therefore,
unresolved in their tension with the constitutional rule of law."
It is worth considering, I believe, whether this state of affairs results not
only from how religion is judicially defined in section 2(a), but whether it
also results from a narrow, Oakes-inspired conceptualization of the
balancing exercise courts are required to engage in under section 1 of the
Charter? On this point I would commend for consideration the unfolding work
of Professor Brad Miller at the University of Western Ontario Law School,
particularly his recent essay, "Justification and Rights Limitation", in Grant
Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory.
VII. A Sixth Lens: Public Morality and Religion
A final philosophical lens through which the judiciary has assessed the
reasonableness of limits on religious freedom is that relating to issues of
personal freedom and morality, particularly in the area of sexual ethics.
I think the Supreme Court's 2005 decision in Labaye
offers a good example of how this final lens has operated.
Popularly known as the 'swingers case', Labaye involved an appeal by the
owner of a group sex club from a conviction under the Criminal Code for
keeping a common bawdy house for the practice of acts of indecency.56 In a 7-2 decision, a majority of
the Supreme Court held that the group sex practiced at the swingers club were
not "acts of indecency" because they did not involve any kind of harm that
could be objectively shown to interfere with the proper functioning of Canadian
As the minority in Labaye pointed out, the majority adopted a "theory of
harm" taken from the utilitarianism of John Stewart Mill.
58 Utilitarianism is based firmly on
a vision of man as a being whose happiness results from the ability to satisfy
one's pleasures and avoid pain.59 It reflects a view that sexual
conduct is not ordered towards any end; rather, the body is an instrument that
consenting adults can use for any purpose, at any time, with any other adult.
This moral philosophy contrasts starkly with the sexual ethics found in many
religions, for example, Judaism and Christianity. Many religious
groups eschew an instrumental view of the body. For them, man's
happiness lies not in the satisfaction of pleasures, but in the ordering of
human desires based on criteria that lie outside the will of any particular
individual. Freedom is not viewed as a good unto itself, but as a
means towards an ordered, or transcendent, end.
What, then, are the possible implications of a section 1 analysis that
measures religious teaching, especially religious teaching on sexual ethics,
through the filter of the utilitarian moral principles set out in Labaye?
Will religious teachings that are seen to impede the attainment of the
utilitarian principle of the maximum happiness - understood in the sense of the
maximum pleasure - be regarded as contrary to public morality?
Again, I think one can see that the philosophical starting point selected by
a court for its section 1 analysis will have profound implications for its view
of what might constitute "reasonable limits" on religious belief or activity.
I have identified, in a somewhat disjointed fashion, six "philosophical
lenses", or filters, through which some courts have approached the task of
balancing religious freedom with other public interests. These
lenses, in my view, represent the key philosophical fault lines along which
further judicial debate involving religious liberty should occur.
Let me put these "fault lines" into a larger context. In Canada
we enjoy an enviable environment in which people can practice freedom of
conscience, freedom of religion and freedom of thought. Our courts,
in particular the Supreme Court of Canada, have shown great thoughtfulness and
sensitivity in their consideration and treatment of issues involving religious
liberty in this country. It is a record of which we can all be very
At the same time, courts must always adhere strongly to principled and
reasoned approaches to solving the legal problems placed before us.
Principle and reason require intellectual transparency. Judges try
their best to attain this objective. In identifying six
philosophical lenses, or fault-lines, at play in contemporary issues of
religious liberty, I have sought to point out six areas of the judicial
decision-making process in religious liberty claims where transparency of
reasoning must be placed at a premium.
When we, as judges, are called upon to decide cases involving claims of
religious liberty, I think it incumbent upon us to acknowledge candidly, and
articulate as precisely as possible, the philosophical premises which underpin
the positions we take in any decisions. Un-stated principles or
implicit assumptions embedded in judicial decisions work only to obscure the
real issues at stake and hamper public understanding of the reasons underlying
the judicial solutions we enact.
Only by making express the philosophical premises of our decisions can
courts foster a constructive dialogue with the rest of the country about
religious liberty in Canada.
1. Justice, Ontario Superior Court of
2. Chief Justice Beverley McLachlin,
"Freedom of Religion and the Rule of Law", in Douglas Farrow, ed.,
Recognizing Religion in a Secular Society: Essays in Pluralism,
Religion, and Public Policy (Montreal: McGill-Queen's
University Press, 2004), at page 29.
3. Roger Scruton, Arguments for
Conservatism: A Political Philosophy, (London: Continuum,
2006), 130 - 131.
4. Richard Dawkins, The God Delusion
(Boston: Houghton Mifflin Company, 2006), at 14 and 19.
5. Benjamin Berger, Law's Religion:
Rendering Culture (2007), 45 Osgoode Hall Law Journal 277.
6. Ibid., para. 10
7. Ibid., paras. 25 and 26.
8. Ibid., para. 24
9. Ibid., para. 40
10. Ibid., para. 62
John Finnis, "Religion and State: Some Main Issues and Sources" (2006), 51
American Journal of Jurisprudence 107, at 112
Courtnay Murray, "The Problem of Religious Freedom", in J. Leon Hooper, S.J.
(ed), Religious Liberty: Catholic Struggles with Pluralism (Louisville:
Westminster/John Know Press, 1993),152
14. Second Vatican Council, Declaration on
Religious Freedom ( Dignitatis Humanae), para. 3:
"The social nature of man, however, itself requires that he should give
external expression to his internal acts of religion: that he should
share with others in matters religious; that he should profess his
religion in community." Kevin Seamus Hasson, The Right to be
Wrong: Ending the Culture War over Religion in America (San
Francisco: Encounter Books, 2005), 12-13, made the point more
colloquially: "We don't believe in private because we don't live in
private. We humans are social creatures. If
something is important to us we naturally want to celebrate it, or mourn
it, together with others."
15. See Article 18 of the Universal
Declaration of Human Rights; Article 18(1) of the International Covenant
on Civil and Political Rights; Article 9(1) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms; Article
12(1) of the American Convention on Human Rights; and Article 1 of the
Declaration on the Elimination of all Forms of Intolerance and of
Discrimination Based on Religion or Belief. A seminal case in
the early years of the Charter followed suit. In
Big M Drug Mart Chief Justice Dickson declared that freedom of
religion encompassed "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": Regina v. Big M Drug Mart 
1 S.C.R. 295, para. 94. See also R. v. Edwards Books and Art
2 S.C.R. 713, at p. 759. See also, Syndicat Northcrest v.
2 S.C.R. 551, para. 135.
1 S.C.R. 772
17. Ibid., p aras. 36 and 37.
This dichotomy between religious belief and religious practice has been
referred to in other decisions of the Supreme Court - Amselem ,
supra., para. 187; B. (R.) v. Children's Aid Society of Metropolitan
1 S.C.R. 315, at para. 226; Ross v. New Brunswick School District No. 15,
1 S.C.R. 825, at para. 72 - as well as those of the lower courts:
Baldasaro v. Canada 
F.C.J. No. 1272 (F.C.); Brockie v. Ontario (Human Rights Commission),
O.J. No. 2375, para. 42; and Hall (Litigation guardian of) v. Powers
(2002 ), 59 O.R. (3d) 423, para. 27.
18. Berger, supra., para. 43
19. Ibid., para. 45
20. Martha C. Nussbaum, Liberty of
Conscience: In Defense of America's Tradition of Religious Equality
(New York: Basic Books, 2008), at p. 19.
21. Scruton, p. 144.
22. McLachlin C.J., in Farrow, ed., supra.,
25. Princeton: Princeton University Press,
26. Ibid., 18
27. Novak, supra., 9
28. Ibid., 21.
29. John Rawls, Political Liberalism (New
York: Columbia University Press, 2005)
30. Ibid., pp. xlix - l.
Nussbaum follows Rawls on this point, arguing that we can only respect
one another's freedom and equality if we are prepared to "keep religious
orthodoxy out of our common political life": Nussbaum, supra., at
S.C.J. No. 87
32. Ibid., para. 19
34. John Finnis, On 'Public Reason',
Notre Dame Law School, Notre Dame Legal Studies Paper, No. 06-37, at
35. Ibid., at page 5
36. Ibid., at page 9
37. David Brown, Freedom From or Freedom
For?: Religion as a Case Study in Defining the Content of Charter Rights
(2000) 33 University of British Columbia Law Review
551, at 563-4
38. Bruce Ryder, "State Neutrality and
Religious Freedom" (2005), 29 S.C.L.R. (2d) 167, at 177
39. Charles Taylor, A Secular Age
(Cambridge, Massachusetts: Harvard University Press, 2007)
40. Wilfred M. McClay, "Uncomfortable Belief"
(2008), 183 First Things 35, at 37.
41. Scruton, Arguments, supra., at 142.
42. Benson, supra., at 154-155, and in Notes Towards a
(Re)Definition of the 'Secular' (2000), 33 U. B. Law Review 519.
43. Douglas Farrow, "Of
Secularity and Civil Religion", in Farrow, ed., supra., at pp. 140 -
44. R. v. Big M Drug Mart, 
1 S.C.R. 295, at para. 94.
supra., at pages 11 to 12.
46. Ibid., at pages 21 to 22, and 52.
47. Ibid., at p. 24.
48. John Finnis, "Endorsing Discrimination
between Faiths: A Case of Extreme Speech?" University of Oxford
Faculty of Law Legal Studies Research Paper Series, Working Paper No.
09/2008, March, 2008, at p. 6.
49. 2007 S.C.C. 54
50. Steven D. Smith, "The Wages of Advocacy,"
180 First Things (February, 2008) 35, at p. 39.
51. Iain Benson makes a similar point in his
article, "The Freedom of Conscience and Religion in Canada: Challenges
and Opportunities (2007)," 21 Emory International Law Review 111
where, at page 155, he writes: "When we use the 'state' to mean the
order of government and the law, and 'society' to mean citizens at
large, including both religious and non-religious citizens, we must
remember that religion, in some sense, is within both, since religious
and non-religious citizens make up both the state and society."
52. Berger, supra., at para. 61.
53. Ibid., at para. 62.
54. (New York: Cambridge University Press, 2008)
55. R. v. LaBaye, 
S.C.J. No. 83
56. Criminal Code , s. 210(1)
57. Labaye, supra., paras. 52 and 71
58. Ibid., para 105
59. Roger Scruton, A Short History of Modern
Philosophy (London: Routledge, 2002), 237.