Shirley Richards, ContributorIN 1999, the then Canadian Minister of Justice Anne McClellan went on record as having said: "Let me state again for the record that the Government has no intention of changing the definition of marriage or of legislating same sex marriages." (House of Commons Debates Official Report 8 June 1999 at 15967-8).
Yet on June 28, 2005, barely six years after, the 'Civil Marriage Act' (C38) was passed by the Canadian Lower House of Parliament as "the lawful union of two persons to the exclusion of all others."
The bill is expected to make rapid progress through the Senate with the process being completed within days.
The common-law definition of marriage in Canada was the same as that in Jamaica being "voluntary union for life of one man and one woman, to the exclusion of all others."
Canada is now the first Commonwealth country to have redefined marriage to include the same-sex definition. On June 30, Spain followed suit. (Interestingly, last summer, the Australians amended their Marriage Act to make it clear that marriage is a union between a man and a woman).
Canada has been on a course of social engineering ever since 1969 when Prime Minister Pierre Trudeau, then Justice Minister, famously declared: "The state has no business in the bedrooms of the nation."
He then introduced a package of legislation dealing with divorce, abortion and the decriminalisation of homosexual relations. However, Canada's experiment in social engineering has not been without casualties. This paper aims to highlight a few of those little known casualties.
CASUALTIES
The main casualties have been freedom of speech and freedom of religion. In its zeal to equalise the rights of homosexuals with that of heterosexuals, the Canadian court has gone to the extent of treating homosexual rights as being rights to be protected over and above those of other persons, including for the most part, persons of deep religious convictions.
In cases involving a conflict between the rights of employers and the rights of employees to observe religious requirements while on the job, the courts have generally been on the side of the employee.
However, in issues which have pitted homosexual rights against religious freedom, the courts have shown a tendency to side with homosexual rights.
An examination of a few of the cases will assist us in seeing this unmistakable trend. For convenience, we could look at these cases under the two main categories of religious freedom and freedom of speech.
RELIGIOUS FREEDOM CASES
Religious freedom is protected federally in Canada under the Charter of Rights and Freedoms.
Section 2 of the Charter of Rights and Freedoms state as follows:
"2. Everyone has the following fundamental freedoms:
a) Freedom of conscience and religion;
b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) Freedom of peaceful assembly; and
d) Freedom of association."
Additionally, each province has its own human rights code. In the case of Brilinger v. Brockie [2002] O.J. No.2375 as a consequence of his religious beliefs, the owner of a printing shop Mr. Brockie refused to print letterheads and stationery for a particular homosexual group.
In finding the owner in violation of the Ontario Human Rights Act, the Ontario Divisional Court upheld the ruling by an Ontario human rights tribunal deciding in effect "that a business owner could not refuse to provide services to an organisation even if the organisation's fundamental purpose violated his conscience."
The court went on to fine Mr. Brockie for "offending the dignity" of his accusers.
In the case of Chamberlain v. Surrey School Board [2002] 4 S.C.R. 710, there was a dispute over storybooks featuring same-sex parents for classroom use in kindergarten and grade one.
Based on the objections of religious parents, the school board refused to approve these books for use. The Supreme Court of Canada ruled that school boards can consider concerns of religious parents but cannot use those concerns to exclude other protected groups from inclusion in public schools.
Although the decision placed no bar on the expressions of concern by religious parents to school boards, the fact is that school boards are barred from acting on such concerns.
There was also the case of the Christian couple in Prince Edward Island who operated a bed and breakfast business. They refused to rent to a homosexual couple saying they rented double bedrooms to married couples only. They closed their business after they were reported to the Prince Edward Human Rights Commission.
FREEDOM OF SPEECH CASES
Hand-in-hand with freedom of religion cases are those cases which deal with freedom of speech. In R. v. Big M Drug Mart [1985] 1 S.C. R. 295, 336, Chief Justice Dickson set out, in broad terms, the essence of freedom of religion: "The essence 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 belief by worship and practice or by teaching and dissemination." (Emphasis- mine)
This sounds like a satisfactory definition but the actual outcome of subsequent cases has left people of faith in Canada worried about whether they still have that right that Lord Dickson spoke of so loftily.
In the case of Kempling v. British Columbia College of Teachers 2004 BCSC133, Dr. Kempling, an exemplary teacher, was suspended from duty by the B.C College of Teachers for one month for conduct unbecoming of a teacher.
What was such conduct? He had the temerity to write letters to his local newspaper expressing concerns about plans to introduce pro-homosexual curricula in the schools.
The British Columbia Supreme Court upheld the decision of the College of Teachers. Dr. Kempling appealed to the British Columbia Court of Appeal.
The decision of the court was handed down on June 13, 2005: "Justice Lowry, writing on behalf of the court, asserted that Mr. Kempling's newspaper editorials articulating his religious beliefs on the homosexual lifestyle were not deserving of charter protection because the court considered them discriminatory and damaging to the integrity of the public school system as a whole."
This decision is chilling in its implications as it could result in the stifling of any expression of dissent by any professional.
Again in the Saskatchewan case of Owens v. Saskatchewan (Human Rights Commission) [2002] S.J. No. 732, the court found that an advertisement published by Hugh Owens in a Saskatoon newspaper to coincide with 'Gay Pride Day' was in violation of the Saskatchewan human rights code.
The advertisement contained a list of references to certain chapters and verses of the Bible, including Romans 1, Leviticus 18:22, Leviticus 20:13 and
1 Corinthians 6: 9-10. (These are verses which denounce the practice of homosexuality). Additionally, there was a graphic of two stick men holding hands with the universal symbol of a red circle with a diagonal bar superimposed over the top.
In response to a complaint, the Saskatchewan Human Rights Commission ruled that this advertisement incited hatred towards homosexuals. Upon appeal, the court upheld the decision, with Justice Barclay writing: "In other words, the Biblical passage which suggests that if a man lies with man they must be put to death, exposes homosexuals to hatred." With the decision in this case, Canada may be just a decision away from banning the Bible or certain parts thereof as hate speech!
GREATER PROTECTION FOR HOMOSEXUALS
But Canada is not the only country which has seen it fit to control freedom of speech and freedom of religion in favour of the rights of homosexuals.
Sweden has also taken such a stance. In 2004, Pastor Ake Green of Brogholm, Sweden, was sentenced to one month's imprisonment after he was found guilty of offending homosexuals in a sermon in which he had described homosexuality as "abnormal, a horrible cancerous tumour in the body of society."
The court recognised that Pastor Green was against homosexuality as a phenomenon, as distinct from being against specific persons who were homosexuals. It also recognised that Green thought his job was to re-orientate homosexuals through counselling.
Green won on appeal in January of this year, but that's not the end for Pastor Green as the state is appealing this recent decision. Interestingly, however, the Lower Court's opinion was very similar to the reasoning of the Canadian courts, holding inter alia that "... It may be necessary in a democratic society , to attempt to prevent and penalise undesirable expressions for certain religious proclamations on the condition that this is done while considering taking into account that the sanction in question is proportional to the goal in view ... So that the rights of homosexuals as a group be not infringed they are worthy of greater protection than is Ake Green ...".
One commentator has predicted that the passage of C38 will have an "international ripple effect". Some are also predicting that England will be the next to legally accommodate same sex marriages.
To think that we will be immune from these effects because of our strong heterosexual culture is extreme naiveté, particularly in view of the fact that Canada is a Commonwealth country. For the concerned among us, I say to be forewarned is to be forearmed!
Quotations on the Canadian situation were taken with permission from 'Withering Rights" The Evangelical Fellowship of Canada; 'Divorcing Marriage' Daniel Cere and Douglas Farrow, Editors; press release June 14, 2005 Christian Legal Fellowship, Canada.
Shirley Richards is a Kingston-based attorney-at-law.
