June 3 – 5, 2010
Presented to: Christian Legal Intervention Academy (CLIA)
By: C. Gwendolyn Landolt
REAL Women of Canada
Box 8813, Station “T”
Ottawa, Ontario K1G 3J1
It is likely that there will be at least three (3) major areas for legal challenges in the future which will have a direct impact on Christians in Canada. They are:
Jurisdictional Conflicts on Controversial Issues;
The Tension Between Religious Freedom and Religious Rights in the Public Square; and
Conflicts Between Parental Rights and State Rights in Education.
Jurisdictional Conflicts on Controversial Issues
In a split decision (2 to 1), the British Columbia Court of Appeal in PHS Community Services Society v. Canada Attorney General (2010) held that the Vancouver drug injection site was a matter of provincial jurisdiction, by reason of the application of “inter-jurisdictional immunity” in that is was a “hospital” providing “medical treatment” and, therefore, the provision of the federal Controlled Drug and Substance Act did not apply to the site.
In her dissent, Madam Justice Daphne Smith stated that, in cases where federal law and provincial activity conflict, the application of the “paramouncy” doctrine by which the federal law is paramount over provincial law, applies. She stated further that the Vancouver injection site significantly impairs federal criminal law mandate over controlled substances, creating “enclaves” where illicit drugs may be bought for intravenous drug use and thereby “eviscerates” the efficacy of a criminal law validly enacted by Parliament.
Seldom has a Canadian court shielded a provincial power from a federal law since established constitutional interpretation provides that in a conflict between federal and provincial jurisdiction, the benefit is given to the federal legislation which is paramount.
In the application to the Supreme Court of Canada for Leave to Appeal on February 5, 2010, the Attorney General stated that the doctrine of inter-jurisdictional immunity as applied by the B.C. Court of Appeal raises serious questions about the division of power between the federal and provincial governments, which must be resolved.
The hearing on the application for Leave to Appeal has been delayed because of the applications of the opposing parties, and their requests for extension of time, with the result that documentation for this application was not completed until May 17, 2010.
The significance of this decision of the B.C. Court of Appeal is that if the Supreme Court of Canada upholds the decision, then this will open up an avenue for other controversial issues in the Criminal Code such as euthanasia or medical technologies to be regarded as provincial health care matters only, and therefore outside the jurisdiction of the Criminal Code.
It should be mentioned that this is not the first time that Canadian courts have turned a constitutional doctrine on its head. In Morgentaler v. Attorney General of Nova Scotia (1993) 3 S.C.R. 463, the question arose whether the Nova Scotia legislature had jurisdiction to prohibit abortions being performed in other than public hospitals such as Morgentaler’s abortion clinic, and whether the provincial legislation prohibiting the funding of abortions in Morgentaler’s clinic was ultra vires the province. Established constitutional doctrine has always been that on matters of jurisdiction under S. 91 and S. 92 of the Constitution Act (1867), if the federal government has not legislated on a matter, under its head of power, then a province may properly legislate on that matter. Since there was no law on abortion, as it was struck down by the Supreme Court of Canada in 1988, it would appear that the Nova Scotia legislature had acted properly, according to the constitutional doctrine, by legislating on a matter relating to abortion procedures. That is, since there was a “vacancy” or absence of legislation federally in the matter of abortion , then the province could legislate on the issue.
The Supreme Court of Canada, however, thought differently, and concluded that the Nova Scotia legislation was in pith and substance an attempt by that province to legislate in an area of criminal law, since the provincial legislation was designed to serve a criminal purpose within the federal head of power and was therefore ultra vires the province.
In reaching its conclusion, the Supreme Court of Canada ignored the established constitutional doctrine which in effect was that whenever there is a vacancy on a matter of federal jurisdiction the province may enact legislation.
This constitutional doctrine was argued before the court by the intervener REAL Women of Canada, but the court chose to ignore it.
Not only have the courts in controversial issues ignored the established constitutional doctrines; they have also ignored Stare Decisis. This occurred in R. v. Rosenberg
In reaching this decision, Madam Justice Rosalie Abella, who wrote the judgement, simply ignored the 1995 decision of the Supreme Court of Canada in the Nesbitt & Egan  2 S.C.R. 513, 124 D.L.R. (4th) 609, 12 R.F.L. (4th) 201, 29 C.R.R. (2d) 79, 96 F.T.R. 80 case that held that “spouse” refers to members of the opposite sex only. In her conclusion, Madam Justice Abella explained her re-interpretation of clearly written legislation, at paragraph 40 as follows:
…elected governments may wait for changing attitudes in order to preserve public confidence and credibility. Both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.
During the course of arguments in that case, Madam Justice Abella had disposed of Nesbitt and Egan by flatly stating that it had been “wrongly decided”.
The concern, obviously, of which we should be aware, is that that the courts are “flexible” on controversial issues and are prepared to ignore long established constitutional and procedural doctrines in reaching their conclusions.
The fact that provinces are now prepared to infringe on federal jurisdiction on controversial issues has already occurred. For example, the Quebec government has challenged federal jurisdiction on reproductive technologies. The EFC is one of the interveners in that case which is on reserved judgement. The Quebec National Assembly has also established a special commission on “dying with dignity” and released a consultation document in February and March 2010, after having heard from legal, medical, ethical and philosophical experts. The commission now plans to travel in August to eleven major cities in the province to consult with interested parties on the issues.
This is occurring despite the fact that euthanasia and assisted suicide are prohibited under Canada’s Criminal Code.
The Tension Between Freedom of Religion and Homosexual Rights in the Public Square
One might assume that the protection of religion written in the two sections of the Charter, S. 2 and S.15, would strengthen religious freedoms in Canada. This, however, has not been the case. The guarantees for religious freedom have, in fact, most often been used by the courts to restrict or narrow religious freedom rather than expand it, and especially so when it comes in conflict with the “equality” rights of homosexuals. These latter rights written into the Charter by the courts have increased and been strengthened step by step by the courts until homosexual rights are now, for the most part, trumping religious rights.
This development is extraordinary, considering that homosexual rights were deliberately excluded from the Charter in 1980-81, in a 22 to 2 vote, by the Joint Committee of the Senate and House of Commons, which reviewed the Charter. However, the Supreme Court of Canada has changed this omission, and “read-in” protection for homosexuals in the equality provision, (S.15) of the Charter in Egan v Canada  2 S.C.R. 513. The court did so on the grounds that “sexual orientation” in its opinion was analogous to the other protected groups set out in S.15 of the Charter. Once this provision was written into the Charter by the courts, homosexual rights have been steadily increased and recognized so that their relationships are now regarded in law as equivalent in every way to those of heterosexuals.
No Proof of Discrimination Against Homosexuals
It is significant that actual proof of discrimination against homosexuals has never been introduced at any time in evidence in any court in Canada. The courts have, instead, based their decisions for the advancement of the homosexual agenda solely on the assertion by the homosexual litigants themselves that they experienced discrimination in Canadian society. That is, evidence, such as credible data or documentation, has never been introduced to support their claim of discrimination. Instead, the Canadian courts have accepted, as fact, that homosexuals experience disadvantages in Canadian society because of supposed stereotyping and prejudice against them.
Religious freedom, although written precisely and clearly into two sections of the Charter, was then squared off against homosexual rights, which had been devised, promoted and written into the Charter by the courts. While Canadian Courts were busy providing protection and legal recognition to homosexual relationships by way of the equality provisions in S.15 of the Charter, they were chipping away at religious rights in S.2 and S.15 of the Charter.
Courts Curtail Religious Belief in the Public Square
In Trinity Western University (TWU) v British Columbia College of Teachers (BCCT)  1
S.C.R. 722, which dealt with religious beliefs in the classroom, the Supreme Court of Canada held that although there was a freedom to believe, this was broader than the freedom to act on this belief [in a classroom] and that the freedom to exercise genuine religious belief did not include the right to interfere with the rights of others (i.e., homosexuals) in the public square.
Religious freedom, however, cannot be reduced to freedom of worship or even freedom of private conscience. Religious freedom means that religious groups as well as religious individuals have a right to exercise their influence in the public square. Any attempt to reduce the fuller sense of religious freedom which has been part of our history in this country, to a private reality of worship and individual conscience as long as you don’t make anybody else unhappy, is not in our legal tradition.
This is because the religious voice in the public square is required to keep social – ethical values in a moral context. Religion is an important holder of our collective moral memory – a memory we use or ignore at our peril, as it is a store of traditional knowledge and wisdom.
As stated by Margaret Somerville, Director of the Centre for Medicine, Ethics and Law, McGill University, in the Ottawa Citizen, May 15, 2010:
Value conflicts cannot be resolved by excluding religious voices from the public square. On the contrary, doing so is likely to exacerbate these conflicts.
The homosexual rights agenda, however, is a political ideology which is relentlessly trampling down everything in its path, including religious freedom.
The rise of the ideology of homosexual rights to assault religion risks undermining the very foundation of human rights themselves.
There is now a large volume of decisions by Human Rights Commissions supporting homosexual rights over religious rights, all of which are far too extensive to discuss in detail here. These cases deal with a variety of situations, such as a mayor refusing to declare a Gay Pride Day on the basis of her religious belief; a Christian teacher publishing a letter in a local newspaper opposing homosexual material in the schools; a Christian couple owning a bed & breakfast refusing to rent a room to homosexual couple, etc. In all of these complaints before the Human Rights Commissions, homosexual rights trumped religious freedoms.
The recent Christian Horizons case, although more moderate in its conclusions, has yet to resolve the tension between religious freedoms and homosexual rights.
Impact of Homosexual Rights on Religious Freedom
Religious belief does not restrict or regulate homosexual conduct in the public square, but the secular values protecting homosexuals do infringe on many citizens holding a religious belief. This has occurred even though homosexual rights under the Charter sprang only from the minds of the judges of the Supreme Court of Canada who require that the law, culture and religion adapt to the demands of homosexual activists.
For the courts to demand that a believer’s actions in the public square be adapted to the secular interpretation of homosexuality is untenable, as it forces the believer to ignore his faith. This is unacceptable in a supposedly democratic society.
It would appear, therefore, in order to prohibit this discrimination from continuing and in order to provide true equality under the Charter, that the religious belief system must be permitted to operate freely and be accommodated in the public square on a “live and let live” basis. This reconciliation of opposing provisions in the Charter would lead to a fair, reasonable and genuine balancing of rights and would provide true equality under Canadian law, which will be the subject of continuing legal challenges in the ensuing years.
Conflicts Between Parental Rights and State Rights in Education
Provincial governments and/or their school boards have assumed the right to inculcate children in acceptance of homosexuality under the rubric of “tolerance” in order to allegedly prevent “bullying” of homosexual children in the schools.
This attempt to normalize homosexuality is now a part of school curricula – especially in British Columbia and Ontario, and has led to a hostile environment for those with a Christian perspective.
Supreme Court of Canada and Parental Rights
The Supreme Court of Canada in Chamberlain v. Surrey School Board  4 S.C.R. 710, gave a confusing decision relating to parental rights. In that case, a kindergarten teacher, who was a homosexual activist, asked the Surrey School Board to approve three books sympathetic to homosexuality as supplementary Reading resources, for use in teaching the family life education curriculum. The Board refused to do so on the basis that the books would engender controversy in light of some parents’ religious objections to the morality of same-sex relationships.
Madam Justice Beverley McLachlin, on behalf of the majority (Gonthier and Bastarache J J dissenting), held inter alia at paragraph 10-25 that parental views cannot override the necessity of public schools to mirror the diversity of the community and teach tolerance to children.
The decision did not, however, prevent persons with religiously-based moral positions from participating in deliberations concerning moral education in public schools, although this thought was circumvented, as Madam Justice McLachlin stated that religious views cannot deny equal recognition of a minority group (read: homosexual).
At paragraph 19 of her judgement she stated:
The Act’s insistence on strict secularism does not mean that religious concerns have no place in the deliberations and decisions of the Board. Board members are entitled, and indeed required, to bring the views of the parents and communities they represent to the deliberation process. Because religion plays an important role in the life of many communities, these views will often be motivated by religious concerns. Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door. What secularism does rule out, however, is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community. A requirement of secularism implies that, although the Board is indeed free to address the religious concerns of parents, it must be sure to do so in a manner that gives equal recognition and respect to the members of the community. Religious views that deny equal recognition and respect to the members of a minority group cannot be used to exclude the concerns of the minority group.
The practical effect of this, however, is that the religious views of parents may be taken into consideration only when they do not conflict with “respect” and “tolerance” for the views (and lifestyle) of others. That is, parents with religious views must not raise objections to those of same-sex parents and teachers in the schools, since this would be disrespectful and intolerant of them. Same-sex parents and teachers in BC are now officially protected under this ruling, as they may now successfully request that their views be promoted in the schools, but parents who have religious views opposing homosexuality may be “heard” but their views cannot be the determining factor.
The British Columbia Experience
Nowhere is this more apparent than in British Columbia where a homosexual couple (the Correns) laid a complaint before the British Columbia Human Rights Commission claiming that homosexuals were experiencing discrimination in the school system. This led to the Attorney General Wally Oppal signing a secret Settlement Agreement with the Correns on April 28, 2006.
The Corren Settlement Agreement gave two private homosexual citizens and activists a special role in the development and review of the B.C. educational curriculum. Also, given priority were organizations and groups which had “… expertise in sexual orientation, homophobia and other issues of inclusion and diversity in the curriculum”.
The agreement further provided for an elective Social Justice course for grade 12 students. Although this course is elective, the nature of it is such that it lends itself readily to the introduction of propaganda and a very one-sided portrayal of homosexuality.
Unfortunately, very, few parents are aware of this insidious contract with the Correns. That is partially because the media has said very little about it and whatever has been said, is usually favourable to the Corren Agreement. With a few exceptions, churches have not been willing to allow information on the Corren Agreement and its ramifications into the church to inform their people. This might be because they don’t realize how seriously this affects traditional family values. Parents with children in private schools also assume they are safe and so don’t bother about it.
The Catholic Civil Rights League contacted all the school board in the province about this program with inconclusive results.
The Alberta Experience
The province of Alberta has a generously funded education system that provides 100% funding to all public and Catholic schools. Christian schools, operating independently of the public system, receive 80% funding as do home schoolers. A Christian school may also operate within the public system.
The Alberta government amended the School Act last year to provide that a parent or guardian of a child has a right to be notified in advance of any curriculum that explicitly teaches religion, sexuality or sexual orientation, and that the parents may take the child out of that part of the curriculum without academic penalty. This recognizes a parental right, in regard to a child’s education in sensitive subjects, as an enforceable human right.
The Alberta Education Minister Dave Hancock has further announced at the end of May, 2010, additional amendments to the School Act which are expected to provide a more formal role to parents in developing the curriculum on sexuality.
The Ontario Experience
In January 2010, the Ontario government made public a sex education program entitled “Ontario Curriculum Grades 1 to 8, Health and Physical Education”. The program included teaching 8 year olds about same-sex marriage, sexual orientation and gender identity. In grade 6 children are to be instructed on masturbation, vaginal lubrication. In Grade 7: sex acts such as oral sex and anal penetration were to be discussed.
Because of concerns raised by parents of faith as well as other parents, Ontario Premier McGuinty withdrew this sex education program, it is on hold until more consultation had been conducted.
Parents correctly perceived that the sex education program was in effect an entrenchment by so-called “experts” of their own libertine agenda. The program pretended to be values neutral, but in fact was promulgating an alternative moral code as defined by those who wrote the curriculum. Parents instinctively knew this.
The Quebec Experience
In September 2008, the province of Quebec introduced a mandatory ethics and religious culture course which replaced the province’s traditional choice of Catholic, Protestant or non-sectarian moral instruction in public and private elementary and secondary schools. Objections were made by some parents that the program: introduced at a young age may contradict parents’ religious teachings, did not provide choice, and denied requests for exemption. In effect, the state was essentially foisting one religious belief system on students and their families.
An organization called Coalition for Freedom in Education brought a court action in Quebec Superior Court against the school board in Drummondville, Quebec. The Quebec Ministry of Education intervened in the case. The application was refused by the lower court in September 2009 and on February 24, 2010 the Quebec Court of Appeal refused to hear an appeal of the decision. An application for Leave to Appeal to the Supreme Court of Canada is now pending.
Two other court challenges against this education program in Quebec have also been launched in the province of Quebec.
BRIEF ON SOLICITATION LAWS PRESENTED TO THE HOUSE OF COMMONS
SUBCOMMITTEE ON SOLICITATION LAWS
Submitted by REAL Women of Canada
Future Engagements by Christian Groups
FUTURE ENGAGEMENTS BY CHRISTIAN GROUPS
Upholding the Integrity
Of Traditional Marriage