The confused Canadian approach to conscience

THIS POST IS PART OF AN INTERMITTENT SERIES ON the CANADian approach to CONSCIENCE. THE previous POST IN THIS SERIES IS A prolegomenon on freedom of conscience.

The Canadian approach to conscience is, as the title suggests, confused. Conscience is often only paid scanting attention in judge-made law because its legal and social meaning is obscured by its most common manifestation. Courts adjudicating on issues relating to religious rights, or balancing the rights of a religious person or group against another minority’s interest, often touch on conscience as a facet of religion. The difficulty with this approach is that judicial concepts of conscience fail to root themselves in a principled stance.[1] Such important concepts left to prevailing judicial opinion confuse and thus weaken subjects’ rights.

Canada’s judicial approach is a case-in-point. Few benches have provided an exact definition of ‘conscience’, and the drafters of Canada’s Charter of Rights and Freedoms gave no legislated definition. Gracious commentators point courts’ obvious analogies between the freedoms of religion and conscience up, to wit:

The protection of non-religious beliefs/practices (the freedom of conscience component of subsection 2(a) appears to be limited to practices that resemble in content and structure familiar religious practices.[2]

A less gracious view characterizes Canada’s recent appreciation for conscience as it is expressed in decisions regarding freedom of religion as a series of ‘red flags’ that imperil democratic life.[3] The flags raised relate to the totalizing effect of recent decisions, where religious or conscientious convictions were quashed in favour of other rights or the reasonable limitation of rights in the collective interest.[4] The most recent debate regarding Trinity Western University’s law school has, for example, led to strident commentary rooted in value judgments of Evangelical religious mores.[5] Such value judgments impede pluralist innovations in the Canadian approach to conscience.

These judgments have little place in other legal regimes, where courts adopt a much more deferential approach to individuals’ and groups’ claims of conscience. This approach was indeed Canada’s so far as it concerned early Charter cases regarding religion.[6] Chief Justice Dickson’s endorsement of religious freedom in R v Big M Drug Mart is emblematic of this approach:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, 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.[7]

The Chief Justice’s statement of freedom accords with other definitions of liberty because the ‘human person’ possesses ‘inviolable rights’ that are incapable of cession even to the state. More recent judicial interpretations have, however, given conscience so short a shrift that it risks disappearing from the public sphere.[8] Chief Justice McLachlin’s individualist approach to religion in Law Society of British Columbia v Trinity Western University is a case-in-point:

I agree that “a right designed to shield individuals from religious coercion cannot be used as a sword to coerce [conformity to] religious practice”. This follows if we accept that the freedom of religion guaranteed by the Charter is “a function of personal autonomy and choice”. It is based on the idea “that no one can be forced to adhere to or refrain from a particular set of religious beliefs”. For this reason, it protects against interference with profoundly personal beliefs and with the voluntary choice to abide by the practices those beliefs require. It does not protect measures by which an individual or a faith community seeks to impose adherence to their religious beliefs or practices on others who do not share their underlying faith. I therefore conclude that what the claimants seek in this appeal falls outside the scope of freedom of religion as guaranteed by the Charter.[9]

This reasoning inverts the emphasis on freedom of religion by surreptitiously citing conscience. Religion cannot invade the conscience of another because the individual is inviolate. Such a high standard severely curtails religious groups’ cohesion while favouring an atomized society of free agents.[10] Atomization is inimical to the historical Canadian approach to conscience and religion.

            This new Canadian position is atypical among national and international legal regimes. The comparative perspective, only lightly adopted in the Supreme Court’s decisions,[11] exposes judicial views of conscience (unfortunately, oftentimes with reference to religious belief) that much better accord with its valuation as a universal power. Such power is in most states formally placed beyond the reach of government interference. Indian cases lead the charge, but European and Caribbean cases provide equally important commentary on the nature of conscience and the limits which may be imposed upon it.

            The few Canadian cases that deal with freedom of conscience (rather than, as I have cited, cases dealing with religion) do so with only glancing reference to conscience’s importance–another difficulty in the Canadian approach to conscience. Justice Dickson’s belief in the oft-quoted case of Big M Drug Mart, where Parliament’s requirement for businesses to close on Sundays was challenged, sets the stage for a very open approach to freedoms and conscience. This seminal case on freedom of religion caused Justice Dickson to declare that

Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.[12]

Conscience is, on this reading, so fundamental that it is no longer a right, but a reason for rights. This powerful conception of the freedom has some support in academic literature.[13]

Justice Wilson’s mention of conscience in Morgentaler, the Supreme Court case that struck down Canada’s criminal prohibition of abortion,builds on Justice Dickson’s definition of ‘freedom’. She gives the term ‘conscience’ a broad definition:

The deprivation of the s. 7 right in this case offends freedom of conscience guaranteed in s. 2(a) of the Charter. The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state. Indeed, s. 2(a) makes it clear that this freedom belongs to each of us individually. “Freedom of conscience and religion” should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality and the terms “conscience” and “religion” should not be treated as tautologous if capable of independent, although related, meaning. The state here is endorsing one conscientiously-held view at the expense of another. It is denying freedom of conscience to some, treating them as means to an end, depriving them of their “essential humanity”.[14]

This passage does not delve too deeply into the meaning of ‘conscience’, but it delineates the ambit of state intervention. Justice Wilson expresses conscience as a moral power that is entirely divorced from the state’s control. More importantly, the Justice confirms that ‘conscience’ and ‘religion’ do not create truth in and of themselves, nor do they justify action by simple invocation. The content of conscience founds its inviolability. Going one step further, the content of conscience is, as an essential element of a person’s humanity, defined by its facilitation of each individual’s beliefs.

            This principle was identified by the Supreme Court of Canada in Law v Canada with reference to the Charter guarantee of equality to Canadians.[15] This guarantee is seen as a much more levelling right, and one that courts are more comfortable handling.[16] The Court defined human dignity in terms not so different from Justice Wilson’s appreciation of conscience:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.[17]

The statement paints a large swath across constitutional protections, even though it is mooted in the right to equality. That right is, like the right to religious belief, an instantiation of conscience in a ‘liberal pluralist’ vein.[18] Subjects exist in a society ‘within which individuals and groups can freely pursue their distinctive visions of what gives meaning and worth to human existence’.[19] That pursuit involves equality, but it is equally ascribed to the freedom of conscience.

            Here, however, we enter onto the wafer-thin surface of Canadian cases relating to conscience. Maurice v Canada is the only case that has applied freedom of conscience in some way beyond its connection with religion. A prison inmate had been received a vegetarian diet because he was a member of the Hare Krishna faith. He desisted from membership but wished to remain vegetarian. Corrections Service Canada refused to provide him with a vegetarian diet unless he presented a religious reason for the diet. The Federal Court, in short reasons, found that sincere vegetarianism constituted a conscientious claim. It allowed him to receive vegetarian meals.[20]

            Conscience has arisen in other cases, most notably in the Canadian debate regarding medically assisted suicide. Its judicial definition remains virtually non-existent. Returning to Justices Dickson’s and Wilson’s opinions at the dawn of Charter jurisprudence, ‘conscience’ is defined with regard for an individual’s dignity. A person ought to be able to express their thoughts and beliefs and, in a majority of cases, act upon them. When courts have paid particular attention to conscience, it is through limited application and, in Maurice, by analogy with religion.

            The analogy in Maurice is particularly with reference to the Canadian approach to conscience. A shift from individual liberty, where the state is restrained or limited in its sphere of influence is in the offing. The movement resembles the American Supreme Court’s elision of distinct freedoms with a wider right to equality.[21] Justice McLachlin’s reasoning in LSBC v TWU works to this point: if all are equal, then judicial focus turns to balancing equal rights. This approach is bureaucratic, one based on categorical reason.[22] It conventionally eschews substantive engagement with the ill-defined categories of religion and conscience.

[1] Richard Moon, “Liberty, Neutrality, and Inclusion: Religious Freedom under the Canadian Charter of Rights and Freedoms First Amendment Discussion Forum” (2002) 41:3 Brandeis LJ 563–574 at 573.

[2] Richard Moon, “Freedom of Conscience and Religion” (2013) 61 Supreme Court Law Review 339 at para 2; vide. Richard Moon, “Conscience in the Image of Religion” in J Adenitire, ed, Religious Beliefs and Conscientious Exemptions in a Liberal State (London: Hart, 2019) 73 at 87–8.

[3] Waldron, supra note 12 at 227.

[4] See, for example, Thomas M J Bateman, “Trinity Western University’s Law School and the Associational Dimension of Religious Freedom: Toward Comprehensive Liberalism” 42 at paras 100–6.

[5] Law Society of British Columbia v Trinity Western University, 2018 SCC 32 [LSBC v. TWU (SCC)]; Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 [TWU v. LSUC (SCC)]; e.g. Robin Elliot & Michael Elliot, “‘Striking the Right Balance: Rethinking the Contest between Freedom of Religion and Equality Rights in Trinity Western University v. The Law Society of British Columbia’” (2017) 50 University of British Columbia Law Review 797–883 at paras 31–2.

[6] Mark A Witten, “Tracking Secularism: Freedom of Religion, Education, and the Trinity Western University Law School Dispute” (2016) 79 Saskatchewan Law Review 215–263 at paras 4–5, 123–4.

[7] R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 336 [Big M].

[8] Mike Madden, “Second Among Equals: Understanding the Short Shrift That Freedom of Religion in Receiving In Canadian Jurisprudence” (2010) 7 JL & Equal 57 at paras 5, 15, 67.

[9] LSBC v. TWU (SCC), supra note 18 at para 251, citations omitted; cf. Chamberlain v Surrey School District No 36, [2002] 4 SCR 710 at para 212, where Justice LeBel says: “Disagreement with the practices and beliefs of others, while certainly permissible and perhaps invevitable in a pluralist society, does not justify denying others opportunity for their views to be represented, or refusing to acknowledge their existence”. If only this statement were better remembered in the Canadian approach to conscience.

[10] For the implications of this kind of breakdown, see Hannah Arendt, On Violence (London: Allen Lane, 1970) at 55. Foucault’s homo eoconomicus is another example of this disturbing trend.

[11] R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at paras 59, 84–93, 130–9, 142, 148, 178, 188, 195–7, 201 [Edwards Books], reviewing U.S. cases; Syndicat Northcrest v Amselem, [2004] 2 SCR 551 at paras 45, 135, again citing U.S. cases; Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567 at paras 90, 128–9 [Wilson], citing European Court of Human Rights cases; Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), [2017] 2 SCR 386 at paras 64–6, recognizing international treaties as part of Canadian Charter development, and, presumably, the Canadian approach to conscience.

[12] Big M, supra note 20 at 337.

[13] Michael J Perry, “Freedom of Conscience as Religious and Moral Freedom” (2014) 29:1 J L & Religion 124–141 at 135, 137.

[14] R v Morgentaler, [1988] 1 SCR 30 at 37.

[15] Charter, supra note 3, s 15.

[16] Hon Lynn Smith & William Black, “The Equality Rights” (2013) 62:(2d) Supreme Court Law Review 301–378 at paras 73–6, 224–6.

[17] Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at para 53.

[18] William A Galston, “Expressive Liberty and Constitutional Democracy: The Case of Freedom of Conscience” (2003) 48 Am J Juris 149–178 at 150.

[19] Ibid; vide. Thomas Nagel, Equality and partiality (Oxford: Oxford University Press, 1995) at 154–5.

[20] Maurice v Canada (Attorney General), 2002 FCT 69.

[21] Noah Feldman, “From Liberty to Equality: The Transformation of the Establishment Clause” (2002) 90:3 Calif L Rev 673–732.

[22] David Schneiderman, “Judging in Secular Times: Max Weber and the Rise of Proportionality” (2013) 63:1 Supreme Court Law Review 557–577.