Appendix "D"

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D.1    It is reasonable to hold that religious believers are entitled to the constitutional guarantee of freedom of conscience in relation to actions based upon religiously informed moral beliefs.41 For reasons set out in Appendix “C”, health care facilities established by religious believers are entitled to the same guarantee.

D.2    Religious health care facilities may, in addition, rely upon constitutional guarantees of freedom of religion and freedom of association to protect their institutional religious integrity, but this subject is outside the scope of this submission.

D.3    The fact that a religious health care facility is part of a publicly funded “secular” health care system does not nullify or diminish the protection afforded religious health care facilities by constitutional guarantees of freedom of conscience, religion and association. Such claims are usually based upon misunderstandings of the term “secular”.

D.4    Project Advisor Dr. Iain Benson argues that the Supreme Court of Canada decision in Chamberlain v. Surrey School District No. 36 is central to a correct understanding of the meaning "secular" in Canadian law.

Two things need to be recognised - 1) that we are all believers in something; it is not a question of whether we believe, but what we believe in. 2) That the secular sphere, correctly understood as it is now under Canadian law, is inclusive of people of religious belief and that they therefore should have equality under the law and be placed at no disadvantage as against non-religious believers.

The fair treatment of religious communities in the contemporary world depends, in part, on obtaining a fair hearing about the fact that atheism and agnosticism and their projects should not be overtly or covertly given stronger public positions than religious communities and their projects. . .42

D.5    Identifying the place of belief within society as the key issue in Chamberlain, Dr. Benson points out that all nine justices of the Supreme Court of Canada there agreed that "secular" must be understood to include religious belief. Justice Gonthier, citing Dr. Benson's earlier work, explained how "secular" must be understood:

In my view, Saunders J. below erred in her assumption that ‘secular' effectively meant ‘non-religious'. This is incorrect since nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. I note that the preamble to the Charter itself establishes that ‘... Canada is founded upon principles that recognize the supremacy of God and the rule of law'. According to the reasoning espoused by Saunders J., if one's moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has ‘belief' or ‘faith' in something, be it atheistic, agnostic or religious. To construe the ‘secular' as the realm of the ‘unbelief' is therefore erroneous. Given this, why, then, should the religiously informed conscience be placed at a public disadvantage or disqualification? To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.43

Notes

41.    Bird 2018, supra note xx at 115–121

42.    Iain T. Benson “Seeing Through the Secular Illusion” (2013) 54 (Supplement 4) Nederduitse Gereformeerde Teologiese Tydskrif (Dutch Reformed Theological J) 12-29, citing Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710 (SCC) at para 137.

43.    Ibid. (Dr. Benson adds: “Madam Justice McLachlin, who wrote the decision of the majority, accepted the reasoning of Mr. Justice Gonthier on this point thus making his the reasoning of all nine judges in relation to the interpretation of ‘secular.’)”