Courting Discrimination
Canadian human rights courts raise concern
for religious expression
Seven years ago, Trinity Western University encountered Canada’s underlying battle over religious freedoms when the British Columbia College of Teachers refused to accredit TWU’s teacher education program because of the TWU Responsibilities of Membership document. In 2001, when Canada’s Supreme Court ruled in favor of the University, the issue was laid to rest — for TWU. But now, seven years later, many Canadians are again concerned that Canada’s legal system will threaten religious freedoms.
Bob Kuhn (’72), lead counsel in the TWU Supreme Court case, recently spoke about religious freedom in Canada to alumni in Langley. Kuhn and his partners at Kuhn and Company lecture and write about threats to religious freedom in Canada.
The cases, which are frequently disputed in human rights tribunals, often involve restricting religiously motivated speech or action. Whether they result in rulings against expressing religious views deemed offensive or rulings against refusing to provide services to people on religious grounds, Kuhn believes religious freedom faces a growing threat. “The issue is the interface between Christian communities and their freedom to interact with the public, or conversely, the rights of the non-Christian public to tolerate expressions of Christian religious freedom,” says Kuhn. “It’s the difference between freedom of religion and freedom from religion.”
A 2006 decision in the Saskatchewan Human Rights Commission “can be highlighted as an example of the direction these decisions are going,” says Kuhn. In the case, civil marriage commissioner, Orville Nichols, refused to marry a same-sex couple on the basis that the marriage contradicted his religious belief. The same-sex couple complained to the Saskatchewan Human Rights Commission, and the Commission concluded, explains Kuhn, that, “A marriage commissioner is a governmentappointed position, and can’t discriminate between homosexual or heterosexual couples.” The issue at hand, says Kuhn, is, “Is the system discriminatory against the marriage commissioner? Or should the marriage commissioner be given substantial accommodation, so as not to be discriminated against for his religious beliefs?”
Rulings like this “represent a changing ethos of the Canadian public. Our culture is much more skeptical of Christians than it has ever been,” says Kuhn. “Fewer people understand the need for religious freedoms, because fewer and fewer people have religious convictions in the traditional sense.”
Human rights tribunals were established after Parliament passed the Canadian Human Rights Code in 1977. At the time, explains Kuhn, people needed an avenue to bring forward cases of discrimination that regular courts could not adequately manage. “The questions were how does someone in the workplace fight discrimination, for instance, if he or she doesn’t have the means. How does the government create an environment that would assist the complainant to put forward his or her case in a reasonable manner?”
Since the passing of the federal Human Rights Code, each province and territory established human rights tribunals according to provincial legislation. Thus, each Canadian resident can file a complaint of discrimination. However today, “human rights boards have assumed a seemingly broader mandate than they were intended to have,” says Kuhn. “In many cases, the complaints before them are pursued on a political agenda, rather than on a rule of law basis.”
Complaints against human rights cases don’t merely concern religious interests. MacLean’s magazine is currently fighting a popular case before the British Columbia Human Rights Tribunal. The magazine is under fire for publishing a controversial article of political pundit Mark Steyn. His article spurred formal complaints from members of Canada’s Islamic communities, some of whom argue that the commission should force MacLean’s to publish views that contradict Steyn’s. MacLean’s argues that the views published are protected by their freedom of speech, and they refuse to have their freedom to publish restricted.
This type of case shows that the issues being decided by the human rights bodies are controversial and involve broader freedoms than religious rights, including the right to publish unpopular views. Kuhn explains that religious freedom is manifest in these types of freedoms. “Freedom of religion itself is only defined in the context of freedom of expression and freedom of association.” He continues, “The courts and tribunals may well restrict freedoms even more for religious interests as the culture shifts away from religious values towards more liberal values. As this trend continues, no religion is particularly safe, especially a religion that proselytizes, or claims exclusivity or an absolute truth.”
The freedoms of religious communities may be increasingly threatened in courts and human rights tribunals, but hope remains for continued religious expression in Canada, says Kuhn. His firm, in its work to advocate for clients and their religious interests, has seen success in some Canadian cases. “Ultimately, Christians have two choices,” Kuhn explains. “They can retreat to the small ground religious communities have been left with, or they can stand their ground and protect their rights to express religious views in the public arena.”
by J.J. Hutcheson ('08)
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