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Rear View Mirror: A brief glance at … The Law on Religion in Public Discourse

Let's consider the position of Canadian law on the issue of religious expression in the area of public discourse, i.e. engaging in public discussion and debate in regard to the issues of our day.

When learning to drive I was advised about the benefits of periodically checking the rear view mirrors while moving forward. The practice has proven helpful in driving and in life. As a result, I thought we might benefit from periodically taking a brief glance, maybe with a slightly different perspective, at topics that have been covered in the past reflecting on how they affect us today.

… there is a constitutionally protected right for Canadians of faith to engage in public discourse.

Let's consider the position of Canadian law on the issue of religious expression in the area of public discourse, i.e. engaging in public discussion and debate in regard to the issues of our day.

The starting point for reflection on Canadian law in regard to religious expression in public discourse is the Canadian constitution, particularly the Charter of Rights and Freedoms. Canadians of faith have a constitutional right to participate in public discourse.

The Charter's preamble references the founding principles of Canada as recognition of "the supremacy of God and the rule of law." The first Charter section dealing with "fundamental freedoms" is section 2(a) which states that "everyone" has the fundamental freedom to "freedom of conscience and religion." Section 15(1) further endorses this freedom by stating, "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on … religion … "

While the Charter applies between individuals and every level of government in Canada—federal, provincial, municipal, school boards—provision similar to section 15(1) is made in human rights legislation federally and in every province in the country with application between individuals and other individuals, corporations, government, etc.

Section 27 of the Charter requires interpretation of Charter rights "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians," which history indicates clearly includes faith expression.

What all of this means is there is a constitutionally protected right for Canadians of faith to engage in public discourse. This right also includes the right to engage on the basis of sharing one's faith perspective in so doing.

The Supreme Court of Canada has given recognition to this right of engagement on more than one occasion.

In the case R v Big M Drug Mart Ltd, Chief Justice Brian Dickson of the Supreme Court of Canada wrote these words on behalf of the majority of the court:

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

Manifestation of beliefs and opinions includes the public sharing of opinions based on one's personal beliefs, including religious beliefs.

In Chamberlain v Surrey School Board, Mister Justice Gonthier wrote:

I note that the preamble to the Charter itself establishes that ' … Canada is founded upon principles that recognize the supremacy of God and the rule of law.' According to Saunders, J., if one's moral view manifests from a religiously grounded faith, it is not to be heard in the public square, but if it does not, then it is publicly acceptable. The problem with this approach is that everyone has 'belief' or 'faith' in something, be it atheistic, agnostic or religious … Given this, why, then should the religiously informed conscience be placed at public disadvantage or disqualification? … The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of modern pluralism.

Some have argued that our right to speak out from our religious viewpoint is an attempt to impose our beliefs on others. However, we do have the recognized right not to be disqualified from participation because we have a "religiously informed conscience." In participating we need to be aware that the constitution and the courts have recognized this right in the context of a pluralistic society. That means all perspectives are to be accommodated, with a common limiting factor being that the expression of differing perspectives/opinions requires respectfully recognizing the perspectives of others and not "injuring" the rights of others or threatening/causing harm to other people.

We benefit by knowing the accommodation of all perspectives in Canadian society includes the accommodation of the faith/religious perspective on the issues of our day. We also benefit by knowing that we are speaking into a multicultural pluralistic "public square" when we engage in discourse on public policy, government initiatives, court cases, etc. It is prudent to accept the advice given by Jesus that we engage in a manner that can be understood in the contemporary Canadian pluralistic culture.

Behold, I send you out as sheep in the midst of wolves; so be wise as serpents and innocent as doves (Matthew 10:16).

As one former politician has put it, when we engage in public discourse we need to pay attention to these words of Jesus, modify our language to communicate in such a way as to have our perspective understood, and be careful not to misinterpret Jesus' words to mean being "vicious as snakes and stupid as pigeons."

Don Hutchinson is General Legal Counsel for The Evangelical Fellowship of Canada.




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