13 Dec 2016 A Threat to Freedom Anywhere is a Threat to Freedom Everywhere
On the feature today, an in-depth look at the latest religious freedom case to go to the Supreme Court of Canada. Click here to read the transcript of the interview.
In the news:
Christian Schools in BC are being singled out over their hiring policies. Click here to learn more.
We Need a Law has a new website. Click here for the ‘why’ behind the new site and a link to check it out.
We preview an upcoming tour to promote awareness of ARPA’s latest court action. Click here to get the details on the January tour.
And an exchange from our “answering machine” about a controversy involving religious rituals in public schools. Tune in to the show to hear all about it.
The former chair of the Vancouver Public School Board has criticised Christian schools in BC for what are being called discriminatory hiring practices. The National Post ran a feature story last week headlined in part “Christian school policies bar LGBTQ teachers“. The story, by reporter Bethany Lindsay, makes the case that the controversy at Trinity Western University over a so-called “community covenant”, restricting sexual activity of staff and students to heterosexual marriage, is repeated many times over in the hiring policies of a number of Christian Schools in that province. The piece quotes former Vancouver School Board chair Patti Bacchus, who says the policies send “a terrible message.” “Something like that” she says, “just goes backwards. It’s flat-out discrimination and a violation of someone’s human rights.”
ARPA lawyer John Sikkema says the argument simply doesn’t hold water. “There isn’t a human right to work for a private religious school… while living however you want.” Sikkema says. “I don’t have a human right to get married and to be a Catholic priest.” But Sikkema says that’s the basis of Bacchus’ argument, that “private schools can’t have a code of conduct that rules out certain behaviour that some people might consider to be part of their identity. Working for any particular private organization is voluntary, as well as attending there, so you’re not being forced to do anything unless you voluntarily become a part of that community.”
We Need a Law has a new website up and running. Director Mike Schouten says the old site was getting and “cluttered”, and the site, which will be more mobile-friendly, also allows the organization to sharpen the focus on its mission. “We’re trying to counter the culture not just by criticising the culture, but by creating something that we believe people will want to be a part of.” He says the site focuses on the three main goals of the WNAL organization: protection for pre-born victims of crime, laws against sex-selective abortion, and bringing Canada into line with the rest of the international community on the issue of abortion laws generally. “The way we present those (ideas)”, Schouten says, “is in a positive communication method. So it’s very much focused on the positive, rather than just criticising the status quo.”
The URL for the website remains the same: www.weneedalaw.ca
ARPA and We Need a Law are teaming up for a nine-city tour of Ontario in January to talk about a court challenge to that Province’s Freedom of Information and Protection of Privacy Act. The challenge aims to reverse a government policy that automatically excludes any information on abortion statistics from Freedom of Information requests. Cassy Knegt is putting the tour together, and she says it’s about promoting awareness. “The majority of the public doesn’t even know that abortion statistics are hidden,” she says. “(because) they’re not trying to find these statistics.” However, she says, the information is critical to the work of organizations such as We Need a Law.
The tour will feature ARPA lawyer John Sikkema, We Need a Law Director Mike Schouten, and pro-life blogger Pat Maloney, who has been fighting the government on this specific issue for several years.
The tour starts on January 7th, and runs through January 16th, with stops all the way from Ottawa down to Windsor. You can find a detailed itinerary here.
On the feature this week, an interview with Derek Ross, the Executive Director of Christian Legal Fellowship, on CLF’s intervention – along with the Evangelical Fellowship of Canada – in a Supreme Court hearing earlier this month. The case, Ktunaxa v. British Columbia involves the Charter rights of an Indian band in BC.
LN: Derek… what’s this case all about?
DR: The Ktunaxa Nation case is the very first time that the Supreme Court of Canada has heard a religious freedom claim brought by an indigenous community. The case arises from a proposed development of a ski resort on land in British Columbia, and the Ktunaxa Nation oppose that development on the basis that in their belief system it would interfere with their relationship with the grizzly bear spirit. So they feel that if this development were to proceed, they would no longer be able to engage in a number of important spiritual practices to them. So they raised that objection to the Minister, and the Minister did not specifically address it as a religious freedom claim – the Minister responsible looked at it from the perspective of Section 35 of the Charter, which is a different provision of the Charter that deals with aboriginal Treaty rights.
LN: So what does this case really mean for religious freedom? I mean, (why) should Christians care about an aboriginal spirituality case?
DR: Well, addressing the first question first. What this means for religious freedom. It certainly has the potential to be a very important precedent in our religious freedom jurisprudence, and there’s a number of reasons for that. One is that the case raises a lot of very important questions about how far religious freedom should be protected. Especially when the religious exercise in question is seen as impacting on another person, whether it be another person’s interests or right. In this case the competing consideration was the right of a developer to build a ski resort. In other cases it could be any number of things. And what the BC Court of Appeal said in the decision that this was being appealed from was that the Charter does not protect religious exercise to the extent that it requires others to “act or refrain from acting, or behave in a manner consistent with the belief that they do not share.” Of course they said that in the context of a specific case, but our concern was that if that is taken as a broad, sort of blanket statement, it could have some very troubling precedents. Because inherently all religious freedom cases, if they’re going to court, they’re going to court because there’s some competing interest. There’s always some third party interest that is seen as being in conflict with the religious freedom claim, and for us to say that one’s religious freedom is automatically to be over-ridden if and when it brushes up against some other right, would effectively mean very little religious exercise is protected. So that’s one issue that we found of concern.
In terms of why Christians should care about aboriginal spirituality (or religious freedom for other communities in general for that matter), I would say that if we truly believe that freedom of religion and freedom of worship are important goods to society and important to ensure human flourishing, then we should be prepared to defend it, even if it’s for other faith communities, and not just our own. And I think part of that is standing up for the rights of others so that we keep the door open for them and for us to have the freedom to explore important questions about higher being, higher truth, absolute truth – and to do so without government interference. And again, I think it’s important to keep in mind that religious freedom is not absolute, and we wouldn’t advocate for anything and everything that is done in the name of religion to be protected. In some cases, limitations on freedom of religion are justified, but the point is that those limitations have to be specifically justified after a rigorous analysis of what the court requires traditionally in our jurisprudence. Which is looking at various other forms of accommodation, minimal impairment, whether the two considerations are in fact actually in conflict, and coming out at the end of the day with a fact-specific analysis, rather than simply saying that if there’s a third-party interest, it automatically overrides the religious freedom right.
And I think the last thing would be sort of paraphrasing Dr. Martin Luther King Jr. “A threat to freedom anywhere is a threat to freedom everywhere.” And I think that’s especially true for freedom of religion; that when one faith community’s freedom is under attack, it could be seen – and should be seen – as a challenge to religious freedom generally.
And finally, indigenous communities are our neighbours; we should care about them, and ought to be willing to advocate for their right to have their concerns considered in a serious and direct and fulsome way, just as we would want a Christian community’s concerns to be heard.
LN: What’s really at stake in this case? If we win – or if we lose – what’s the ultimate outcome going to look like here?
DR: Well I think the question really is what kind of precedent this case is going to set. Obviously the outcome will directly impact the Ktunaxa Nation, but in terms of the broader implications, a lot will turn on what and how much the Court says about religious freedom and how it ought to be protected in the context of competing considerations and competing claims.
LN: There was quite a bit of discussion in the Court hearing about Section 2a) of the Charter – the Freedom of Religion piece. A lot of people were expecting this to focus on Section 35 – the Aboriginal Rights clause. Were you surprised at the focus of the Court’s questions in terms of the focus on the whole religious freedom argument?
DR: It’s always hard to predict where the Court will go with their line of questioning. I would have thought there might have been more of a discussion surrounding the Section 35 Aboriginal Treaty Rights, and not as much of a focus on Section 2a), but it was interesting that – I would say – the majority if not all of the questions from the bench were surrounding religious freedom and Freedom of Religion under the Charter. So clearly the Court, at least in their line of questioning – which may or may not be reflected in the written judgment – very much engaged on the religious freedom questions
LN: So, is that a good thing?
DR: I think it’s good that they are mindful of the implications for religious freedom. The lines of questioning, I think, draw some concerns about where they might be headed, but it’s very difficult to gauge whether and to what extend a line of questioning is actually reflected in the judge’s thinking or if they’re just sort of putting questions out there because they’re wrestling with something. But I think certainly Christians will want to stay tuned and read this decision when it’s released.
LN: Final question. Could you just sort of outline for us the specific arguments the CLF and the EFC made before the Court? I know it was in writing, but what exactly was in that brief?
DR: Our joint submission focused on two main arguments. First we emphasized why freedom of religion must not be automatically over-ridden if it is seen as impacting third-party interests – in this case the interests of the ski resort – especially when those interests are not themselves Charter rights.
The second point that we made was emphasizing and explaining how State interference with the means or instruments – or we call them “vehicles” – through which religious individuals and communities practice their faith can and should be seen as direct interference with the religious practice itself. So to give an example, the mountain in question – the land in question – is not itself strictly or technically speaking a religious artifact as we might see it. Just as the building of a church is not a sacred religious act if you view it strictly as bricks and mortar. But in reality, for the believer, the church is a place of worship and a place that is necessary for them to manifest their faith. And without the opportunity to come together and have that community, their ability to worship would be severely infringed and impeded.
So in the same way the Ktunaxa Nation, I think, would take the position that the land in question is integral to their spiritual practices. So that any act by the government that would make it impossible for them to use that land to carry out their religious beliefs should be seen as an interference with their religious beliefs, even though strictly speaking it might not be seen that way.
In the end, we didn’t take a position on the remedy, and we did not take a position on whether the decision in question ought to be set aside. We left that for the parties to argue on. Our primary concern was simply that the effect of the decision on the Ktunaxa Nation’s religious beliefs was directly and fully and robustly considered.
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