This post is cross-posted to CAnLii.

The Ontario Human Rights Tribunal had none of a claim to discrimination that was in part based on the claimant’s creed in the case of Sharma v Toronto. The claimant disputed the City of Toronto’s recently enacted by-law that requires enterprises open to the public to enforce masking. The applicant also claimed that his ‘bodily functions are impaired by face coverings’, which was discriminatory due to his disability. I won’t take this ground up here because the Tribunal’s findings were brief.

The case was dismissed at a summary hearing because the allegations could not be sustained against the City.

The alleged discrimination is interesting because the claimant attempts to push the definition of ‘creed’, which is a protected ground in Ontario’s Human Rights Code. The Tribunal’s approach to the right to one’s creed evokes questions regarding the judicial system’s appreciation of creed: lawyers, tribunal members, and judges have a hard time pinning the concept down, so they equate it to a secular religious belief. This is an unsatisfactory solution. The Human Rights Code is the basis for a right to one’s creed, but it exists beside Ontario’s Religious Freedom Act, which legislation has guaranteed religious freedom to Ontario’s subjects for the better part of two centuries. The existence of a statute that protects religious freedom means that the Human Rights Code alone cannot give us a complete view of the definition of ‘creed’ and its import.

This commentary proposes a sliding scale between religion as a word denoting spiritual belief and practise in community and creed, a word that captures a broader swath of collective and individual conduct. Visualizing the problem as a scale allows decision makers to acknowledge a wide segment of views under the terms ‘creed’ and ‘religion’ while focusing on limiting the protection of the freedom where necessary.

The Tribunal’s decision with respect to ‘creed’

The Tribunal dealt with the claim to discrimination based on ‘creed’ awfully quickly. Therein lies the problem. The applicant alleged that wearing a mask violated his right to appertain or express a creed. ‘Creed’ is a difficult word because it is often reflexively associated with religion. The tribunal says as much: ‘“Creed” is not defined in the Code, but most often engages an applicant’s sincerely held religious beliefs or practices” (para. 11).

Note those words: most often. The Tribunal quickly proceeds to wrap its reasons with respect to creed by citing the usual authority, Vezina v Elections Ontario. This case dealt with a jilted candidate for provincial by-election who was denied participation in local candidates’ debates. The Tribunal there adopted the criteria established by the Human Rights Commission. Creed ‘may have the following characteristics’:

a.   Is sincerely, freely and deeply held;

b.   Is integrally linked to a person’s self-definition and spiritual fulfilment;

c.   Is a particular, comprehensive and overarching system of belief that governs one’s conduct and practices;

d.   Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence; and

e.   Has some “nexus” or connection to an organization or community that professes a shared system of belief. (para. 10)

This definition may be quite restrictive because it essentially provides a non-denominational and a-theistic interpretation of the characteristic elements of religion. The Court of Appeal has seen fit to endorse musings about political opinion fitting within the ambit of ‘creed’. These opinions would have to rise to the level of a ‘belief system’ similar to religion (paras. 27-8).

The difficulty

‘Creed’ in the Human Rights Code exists without mention of religion. The absence of any mention of ‘religion’ may be due to the existence of the Religious Freedom Act—a holdover from the Province of Canada. The sole provision of the Religious Freedom Act reads:

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, provided the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province assured to all Her Majesty’s subjects within the same.

This section captures the definitions of religion, which frames the word as a belief in a supervening force. Notwithstanding the existence of the Religious Freedom Act, we’ve freely borrowed from our understanding of religion to define ‘creed’; the Vezina test closely resembles the Supreme Court’s test for religious belief in Amselem.

This resemblance makes applying ‘creed’ difficult and uncertain, especially on facts like Sharma’s, where a litigant sincerely holds a belief in community with others.

A note about statutory interpretation

The existence of a separate protection for religious freedom suggests that ‘creed’ be given an expansive meaning, one that readily admits of the word’s full definition. (Lest you’ve forgotten, the legislature is presumed to be cognizant of all law when it enacts legislation.) Three definitions from the Oxford English Dictionary (out of six) are instructive:

• An accepted or professed system of religious belief; the faith of a community or an individual, esp. as expressed or capable of expression in a definite formula.
• A system of belief in general; a set of opinions on any subject, e.g. politics or science.
• Belief, faith (in reference to a single fact). rare.

These definitions allow for a far broader definition of ‘creed’, one that enhances the protections already in place for religion, and one that may be invoked to protect individual beliefs in a manner somewhat similar to protection of conscience.

The Human Rights Tribunal followed the tradition of interpreting ‘creed’ in a way similar to ‘religion’, which precludes a range of the word’s meaning. Expanding the meaning of the word to accord with its entire meaning better accords with Ontario’s statutory scheme and the legislature’s remedial objective when enacting the Human Rights Code.

Justice George Addy, just prior to his ascending to the bench, quoted the general rule: ‘the Legislature is presumed to not engage in “legislative pleonasm”.’ The modern rule is that the legislature is presumed to not engage in tautology: every word has meaning (2011 SCC 53, para. 38). One might presume that the legislature used ‘creed’ in the Human Rights Code fully aware of the Religious Freedom Act. Guaranteeing religion and things similar to religion creates significant overlap between statutes. The question is how this overlap may be reconciled to ensure that the legislature hasn’t wasted any ink protecting the same social ground twice.

The approach that seems to be favoured by the Vezina test is that ‘creed’ is the secular version of ‘religion’, but the words taken apart are defined by inferring qualities from one to the other. This is a confused approach that approximates ‘creed’ to the more tangible meaning of ‘religion’. Common lawyers may accept the logic because it is a loose analogy. Point (d) in the Vezina criteria is particularly suggestive of this conclusion: we can bring an image of religion to mind; creed is far harder to visualize.

Human rights legislation forces tribunals and courts to balance broader and more restrictive definitions to avoid absurdity. Absurdity occurs when legislation creates an effect that cannot be practically managed within the current legal system (Carfrae Estates Ltd. v. Gamble, para. 20).

If we take ‘creed’ and ‘religion’ as words capable of independent meaning, disharmony ensues between statutes because the words have such closely related meanings, but the legislature chose to use them with full knowledge of these differing meanings.

A tonic

This definitional issue is best resolved by reading the Human Rights Code and statute book as a whole. The Religious Freedom Act protects organized religions and associated worship; ‘creed’ is meant to protect the wider range of belief, systematic or singular. This proposition treats the two statutes as a continuum. The Human Rights Code creates an almost boundless protection of any sincerely held belief. The Religious Freedom Act is a more restricted protection of identified community beliefs and traditions.

The challenge facing the Human Rights Tribunal changes drastically if creed and religion are viewed as a scale. Activity on this scale doesn’t need to be categorized by deploying definitions to preclude conduct. The dictionary’s plain meaning is sufficient.

The Tribunal’s main activity with respect to creed is establishing what sincerely held beliefs are not productive to a free and democratic society. Sound familiar? Protecting the expression of certain beliefs, like those exhibited in Sharma, may not be feasible. This kind of restriction may follow the reasonable and bona fide test (s. 11 of the Code). The Tribunal then need only establish upper and lower limits to protection of ‘creed’, thus creating greater certainty for lawyers and subjects.

This piece is released as part of a broader book project currently soliciting funds via Kickstarter.

Aequitas sequitur legem: equity follows the law, which concept expresses the victory of common law over its equitable counterpart. There is good reason for this win, for the ancient law of equity was administered by the Lord Chancellor, a royal officer whose court in chancery also served as a clearinghouse for royal records. Modern rhetoric about the rule of law absolutely avoids this kind of confusion; Montesquieu’s doctrine about the separation of powers prevails. This classificatory system, like common law, emphasizes the impersonal, monolithic qualities of industrial government. Adam Smith, for example, lauded impersonal justice as the great strength of England’s legal system: ‘When the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to what is vulgarly called politics’. Smith’s observation is, indeed, the case, yet the independence touted by English jurists is itself a political stance against personal government and the irregularities of personal conscience.

Personal conscience, however, may humanize justice systems when such systems openly account for judges’ consciences in the face of strict legal rules. The ancient discourse surrounding equity founds this theory; its application in common law may derive from the equally ancient rhetoric surrounding the honour of the Crown. Much more theorization in this vein is, of course, needed before judges’ conscience is valued in legal discourse and education. The present work introduces equity and the honour of the Crown. It then details necessary scholarly and practical innovations to renew interest in legal conscience.

Of Equity

The system of law administered by Chancery courts in England and its colonies vied against common law courts for power and judges’ fees. Its roots, however, lie in the religious disposition of successive chancellors: Thomas More (d. 1535) was the first Lord Chancellor of England who was not also a bishop. The King’s chief recordkeeper was a cleric, which over time entitled him to dispense justice in the name of conscience rather than law. This different emphasis gave at first onto a supplementary branch of private law. Common law enforced damages; the Chancellor required subjects to comply with their obligations. These were complementary systems that have since been amalgamated, but not before common law proved ascendant over equity. The short history offered here contextualizes this historic change while underscoring the creative potential that gave equity its start.

The Chancellor’s legal duties were an expression of executive government that evolved into a separate branch of judicature. Fleta, the thirteenth-century commentaries on the law of England, describes the Chancellor’s power to hear and examine subjects’ supplications and quarrels with a view to doing justice by the King’s writs (Bk. 2:13). This formula refers to the Chancellor’s role as clerk to the Crown and the Crown’s representative justiciar. The Chancellor’s conscience over time developed into a set of remedies that corrected the law by virtue of the King’s grace. Joseph Story’s tome on equity thus dates this legal field between the reigns of Henry V (r. 1413-22) and Henry VIII (r. 1509-47). A wide range, but one understandable in terms of centralizing royal power. Henry VIII’s power, for example, allowed him to break from Rome and entrain Parliament in his scheme. His Chancellors, Cardinal Wolsey, Thomas More, the Lord Audley, and Thomas Wriothesley, were some of the first lawmen to occupy the office. Wolsey was the last cleric to enjoy the title.

The battle between common law and equity turns on this new approach to staffing the Chancellor’s office. The incoming Stuart reigns oversaw a growing administrative apparatus that required increased taxes on the population; personal justice via the Chancellor dispensed the Crown’s grace where no legal rule existed. Special cases were reserved to the Crown. The Chancellor did justice against common law according to his conscience. Matthew, chapter 5, summarizes the Chancellor’s mission:

17        Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil.

Authorized Version

The King’s grace supplements his law. Such grace cannot, however, stand in the Renaissance as religious belief becomes increasingly fractious. Edward Coke, in the Case of Prohibitions ([1610] 12 Co Rep 63), says that ‘the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace’ (p. 65). This report out of King’s Bench belies the notion of personal grace or dispensation from law. Grace falls further out of favour when the Glorious Revolution (1688) brings the Whig idea of the rule of law into political rhetoric. Law must be predictable and subjugate all, including Lords and Crown.

The rhetoric of regularity inspired by common law’s dominance through the eighteenth and nineteenth centuries served, if Marxist historians are to be believed, a merchant class. This rhetoric particularly worked against the landed aristocratic interest that waned through the seventeenth century. The monarchy, of course, was the apex for this interest. The mercantile view of the rule of law eliminated class boundaries, thus reducing, in a rhetorical sense, the Crown’s ability to dispense discretionary justice via equity.

Most modern scholars laud the end of royal influence. Equity was, in fact, made re-ascendant over any legal interest by legislation. In Canada and the United Kingdom, equity returned to prominence in the late nineteenth-century. Courts were mandated to consider equitable remedies in all common law proceedings with the amalgamation of Chancery, King’s Bench, Common Pleas, and the Exchequer courts.

Equity was not, however, the same after the nineteenth century. Its slow ossification from its origins up to modern times means that equity is now just another set of legal rules. The rule of law has colonized judges’ consciences. Doing right, then, in a moral or ethical sense must conform to the rational tenets legal systems. Lawyers laud this approach; Pierre Bourdieu argues that lawyers’ enthusiasm for their own rules is self-aggrandizing. Duncan Kennedy might bill such zeal as a claim to non-existent objectivity. His contribution—one to which I have alluded in terms of law and poetics—highlights the need for emotion in legal reasoning. James Boyd White has made similar appeals as a literary critic of legal rhetoric. Emotion and equity go hand-in-hand if equity is viewed as the creative approach to dispute resolution that once animated the rhetoric of royal clemency.

Theories of conscience are the battleground for this debate. ‘Conscience’ refers to personal moral conviction, whether informed by systematic belief or not. This personal mechanism has been billed as a ‘secular morality’ (R v Morgentaler, [1988] 1 SCR 30, p. 179) that operates via reason. This characterization, however, may not give conscience its due. Conscience may, to riff on Georg Wilhelm Hegel, actuate between the infinitely subjective internal states of thought and emotion and the objective world. If conscience is conceived in these terms, it is not a concept borne of reason, nor can it be said to explicitly relate to morality. Conscience may instead be considered as a metaphysical bridge between mind and body, reason and emotion. Such an understanding eschews any normative discourse based on morality. It instead asks judges, litigants, and counsel to search within themselves for knowledge and emotions that resonate with the wider community. Knowledge and emotion constitute norms, which only inspire faith in legal institutions when rules resonate in the community. Law, in other words, becomes less confrontational and more deliberative if conscience takes on renewed metaphysical significance. The search for a community’s norms lies at the heart of each legal question.

These appeals to knowledge and emotion, however, do not reach for legal precedents that could nuance the rule of law.

Honour of the Crown – Forgotten Precedent

Precedents exist, I think, in the chivalrous concept of the honour of the Crown. The Crown’s honour, in Commonwealth jurisdictions, refers to the Crown’s legal infallibility. The Crown dispenses its grants and favours to subjects, and these gifts could not be disputed. The honour of the Crown, however, holds the Crown to its word. It emerges from centuries that saw a romantic resurgence in chivalric norms. Truth and justice were essential components of chivalry; they remain features of the administration of justice. Common law courts used the chivalric renaissance against the fountain of these honours. The Crown’s promises were enforceable if they were clear and freely given. Modern courts may use these precedents to hold the Commonwealth’s sovereign to a still higher standard of truth and justice, because these chivalric standards of conduct are granted out of the sovereign’s gift to specific appointees. The sovereign’s grant of power requires the appointee to exercise prudence and compassion (other chivalric virtues), and these tend toward truth and justice.

In earlier times, subjects had no appeal from the Crown’s decisions. The royal prerogative was much stronger before the seventeenth-century revolutions. Courts of common law and equity innovated to grant relief. In 1598, the Exchequer Court laid down a presumption we continue to apply to statutory interpretation:

note the gravity of the ancient sages of the law, to construe the King’s grant beneficially for his honour, and the relief of the subject, and not to make any strict or literal construction in subversion of such grants.

Molyn’s Case, 77 Eng Rep 261

Edward Coke reported a similar conclusion out of Queen’s Bench in 1600:

In many cases the King’s grant ex certa Scientia & mero motu, shall be construed beneficially for the patentee, but such words shall never produce a violent or strainable construction, or any construction which is against the intent and purpose of the King in his grant, but the grant notwithstanding those words shall be taken in an usual and common sense and understanding.

Alton Woods, [1600] 76 Eng Rep 89

The courts enforced royal grants, typically of property, in favour of the subject for whom the grant was intended. This rule departed from the strict common law forms of its time. Equity was a corrective to legal formalism. The grant of some conscientious adjudication paired with judicial recognition of the Crown’s feudal position. The Crown was infallible, but its honour was preserved by its judges, who were fallible creatures resolving disputes among still other fallible creatures.

The House of Lords had occasion to pronounce on this issue in Egerton v Earl Brownlow. The Lords adjudicated an estates case where an honorific was to pass from the deceased to the legatee. The will was challenged as against public policy because the honorific may have been acquired through bribery of the Crown’s ministers. Lord Brougham framed the Crown’s infallibility for the House:

the Crown is, in law, by praesumptio juris et de jure, incapable of being affected by any improper influence, a presumption of law which is not to be rebutted or averred against. That the Crown is the fountain of honour, and the sovereign incapable of giving a wrong direction to its streams, is an undeniable principle of the constitution, an undoubted position of law. But there is another, quite as irrefragable, which supersedes it and precludes its application to the present question. The sovereign can only act by the advice and through the instrumentality of those who are neither infallible nor impeccable,—answerable indeed for all that the irresponsible sovereign may do, but liable to err through undue influence, and to be swayed by improper motives.

[1853] 10 ER 359, p. 428

A minister advising the Crown incorrectly or for corrupt reasons is fallible in her or his office. Judges, in the British system, are ministers of the Crown. The are appointed under the same kind of instrument as a member of Cabinet. The Crown’s honour, in the executive or judicial context, must be preserved by its agents.

The preservation of the Crown’s honour tends toward equity because an honourable Crown is one that deals fairly with its subjects. Administrative lawyers concern themselves with formal fairness, but equity courts typically concern themselves with the underlying fairness of a matter where legal rules do not suffice. The law is to be fairly applied in administrative tribunals. Courts in equity aim to do fairness on the parties.

Can a ruler—in the Commonwealth, the Crown, but the American constitution may operate in similar wise with reference to the people—apply legal rules without reference to a person’s actual condition? In other words, does the rule of law set personal circumstances aside when a legal rule controls the case? Aequitas sequitur legem, but this response may not be good enough at the start of a century of sweeping technological change.

The law must be fulfilled, as the Book of Matthew might say, with regard to the people it pretends to govern, hence the Canadian Supreme Court’s recent concern with the ‘public confidence in the administration of justice’ (British Columbia (A.G.) v Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, para. 117). This concern, or so the court says, is fundamental to the rule of law. The law can be regularly applied with sometimes unjust results. Public confidence is notionally maintained by the rhetoric of regularity. True confidence, however, is obtained by the community’s acceptance of a judicial result as just. The rule of law, on this view, acknowledges the emotive appeal that judges’ decisions must maintain. If the community disagrees with a judge’s decision, the applied rule comes to naught. It is a violence perpetrated on the community and the individual.

Conclusion

The operation of pure reason—law’s historical domain—cedes some ground to equity, where equity is the creative pursuit of fair outcomes. Judges are already animated by these concerns, yet that old sticking point still obtains: aequitas sequitur legem. The judge is duty-bound to apply the law. The honour of this duty has been little recognized. In Canada, at least, the legislated promise that rules of equity prevail over rules of law still denies equity a creative place. The ossified, predictable rules of equity continue in a profession of rule-makers and rule-followers. The Crown, in Commonwealth fashion, vests its plenipotential ability to do justice in its judges. People are made subjects of an appointee, who has the concomitant responsibility to do justice in a manner befitting the Crown’s honour.

Fulfilling the law, instead of simply following it, however, requires flashes of creativity, for only through this more equitable method may each person be seen by their society. The courts appointed to keep the peace do so best when they treat litigants as people rife with emotion; the inherent unknowns of a creative approach to adjudication are not reason enough to crush these essential responses to everyday life. A court can instead appeal to emotion alongside reason in the creative space that pure equity affords. Indeed, it might turn out that the judge’s duty to uphold the sovereign’s honour demands no less.

Scholarly and practical innovations

Defining a judge’s duty with reference to their conscience and to the honour of the Crown—or, at the very least, to their sovereign—requires a strong definition of conscience. Canadian scholars are beginning to accomplish this work with reference to the Charter of Rights and Freedoms. United Kingdom and American scholars are defining conscience, like Canadian academics, as a right to hold and express moral tenets independent from religion. Further definition in this regard enhances the notion that equity must again be done through the individual judge’s beliefs about law and justice.

These beliefs have often been considered by legal theorists and political philosophers. The question of moral conviction as a means of arriving at legal decisions is fraught; much theorizing and argument is still required to show that morality’s emotive appeal can be a legitimate basis for judicial decision-making.

Any academic discussion of this high theory needs roots in professional life. Lawyers too often use reason and objectivity as legitimating ideas; legal sterility is touted in law school and among lawyers. More published stories are needed to illustrate the deep emotional and conscientious investments that lawyers and clients make with each other. Personal accounts of deep connections in practise implicitly value those connections, which value asks other professionals and students to buy into a new way of thinking.

Publishers and editors, of course, play a huge role disseminating new ideas. They are gatekeepers that set the tone for professional and scholarly conversation. Academic arguments that valorize conscience must speak to practitioners, judges, and publishers.

The proposed vehicle for conscience, the sovereign’s honour, must also be better theorized. Precedents need to be re-examined with reference to chivalric norms and law (chivalry is governed by a distinct civil code system). Further academic research is needed to ground the link between modern-day conscience and chivalry in precedents.

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.

This post is part of an intermittent series on Canada’s freedom of conscience. The next post in this series is The confused Canadian approach to conscience.

One’s conscience is received by legal institutions and ethicists alike as the centre for moral decisions, yet the freedom to have a conscience is often interpreted in terms of religious belief. This interpretation is, of course, borne from conscience’s long association with religion: Canada’s governors were, for example, instructed to ‘permit Liberty of Conscience, and the free Exercise of all such modes of Religious Worship as are not prohibited by Law’.[1] This executive prohibition also found legislative expression[2] and is now ensconced in the Canadian Charter of Rights and Freedoms, which guarantees ‘freedom of conscience and religion’.[3] International law disentangles these concepts somewhat. The United Nations’ Universal Declaration of Human Rights tells us that

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.[4]

The rights created by this section situate conscience between reason and belief and provide details about the social circumstances in which conscience may be expressed. The conscience is, in the United Nations’ formulation, a faculty far broader than mere religion, yet it nevertheless remains framed as a type of belief.

            Recent inquiries into freedom of conscience respond to legislative and constitutional ambiguity with forward-looking teleology and wistful reverse engineering. Freedom of conscience is understood as a synonym for minority beliefs that may be individually protected from the majority’s will;[5] conscience is mentioned in the same breath as its erstwhile cousin—religion—because the two are so closely associated.[6] One position looks to protect the individual because individuality is important; another attempts to homologize individual beliefs, thus creating categories that may be governed.[7] Such homology leads scholars to reject protection of conscience because, like religious belief, conscience implies favouring a minority by exempting or accommodating minority groups.[8] The resulting appreciation for conscience is confused because its social phenomenon is very distinct from an individual’s feeling.

            A more progressive strain in the literature theorizes conscience as first an individual phenomenon, then as a collective endeavour. Authors in this strain emphasize the emotional bonds that create community, although some scholars frame these bonds in rational terms to curry favour from their peers.[9] Conscience is, in this strain, a ‘relational’ faculty that allows ‘interpersonal moral accountability’.[10] It is, in other words, a socially recognized ability to act on one’s beliefs, to the extent that those beliefs concord with civil order.[11]

            The approaches, of course, admit of more views than can be described. The debate about legal recognition of conscience is self-referential, so it carries authors’ convictions with each volley.

            Largely absent from the debate, perhaps because conscience is such a rooted issue, is a deeper examination of a faculty that is itself the starting point for an entire branch of English law. Conscience is discussed in stale terms. It represents a passage through which moral decisions are made, but it is itself an unknown bridge between the ability to reason and more common urges. The contemplative and active lives are once more pitted against each other. Descartes’ rational Renaissance association of thought and existence articulates the issue. The mystery of faith is slowly eroded in favour of empirical observation; any faith’s underlying faculty, however, transcends these mysteries. Ecumenicism encourages transcendence. Civil society is apparently less receptive. This claim obtains from either branch of scholarly theorizations of conscience as societal good or personal right. Indeed, categorizing conscience in these terms misses its point. Conscience endures in any circumstance. It eschews regulation. The faculty is incapable of encapsulation in a self-referential system like law.

            The freedom of conscience is powerful because it is incapable of definition; its social and legal importance must be explored with an eye toward these attempts at understanding the concept. The subtle transmutation of conscience from liberty to freedom is an intellectual-historical development that must be understood prior to a full discussion of conscience as it may be applied to contemporary life: subjects exist without restraint or are released from those bonds. Attention to judicial opinions and academic musings will tease out the development. Those latter musings are subject to the above-mentioned division. Some scholars are individualist, while others look beyond those boundaries. Once the movement from liberty of conscience to the freedom to hold conscience is discerned, the need for a more careful, humanist study of this faculty becomes plain.

THE NEXT POST IN THIS SERIES IS THE CONFUSED CANADIAN APPROACH TO CONSCIENCE.