Freedom of Conscience: Our Unexplored Charter Guarantee

The Supreme Court’s Engagement with s. 2(a)

The Supreme Court of Canada’s recent ruling in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, has already inspired much critical commentary, both in the mainstream media and on TheCourt.ca because of its atypically distressing outcome for rights claimants and dubious appraisal in a popular newspaper. What may prove of especial interest to academics, however, is the ruling’s brief engagement with the Charter’s fundamental freedom of conscience.

Despite the clear wording of the Charter promising everyone “freedom of conscience and religion”, the Supreme Court has only ever heard appeals which primarily engage the latter – that is, the freedom to exercise beliefs religiously motivated. It is still yet to hear a freedom of conscience challenge which does not also involve religion.

Indeed, duly appreciating that it may be seldom asked to do so, the Supreme Court has very rarely engaged freedom of conscience as functionally distinct from freedom of religion. Its limited comments on the subject have often come in minority judgments or otherwise in obiter. Although Alberta v. Hutterian Brethren does not officially endorse prevailing interpretations of freedom of conscience, I would argue that its decision does accord with the line of cases considering the content of our hitherto unexplored s. 2(a) guarantee.

Contextualizing Conscience in Big M Drug Mart

A logical starting point in defining the guarantee is the seminal R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, a judgment which grounds freedom of conscience in its civil libertarian context. For the majority, Dickson C.J.C. finds that

[t]he values that underlie our political and philosophical 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.

Here, Dickson C.J.C. rationalizes s. 2(a)’s protection in the need for all citizens to think freely and make independent, informed decisions, as well as for society to tolerate such diversity, in the “political and philosophical tradition” of our liberal democracy. As his statement extends protection to “whatever” beliefs our consciences dictate, Dickson C.J.C. indirectly suggests that s. 2(a)’s rationale would be undermined if the state promoted a diversity of religious beliefs while simultaneously suppressing other “conscientious” beliefs, the precise content of which only begins to emerge in subsequent cases.

Defining Conscience in Morgentaler

The Supreme Court’s next engagement with the freedom of conscience guarantee is easily its most explicit and may be its most enlightening – that is, Wilson J.’s famous concurring opinion in R. v. Morgentaler, [1988] 1 S.C.R. 30.

Recalling Dickson C.J.C.’s finding in Big M, she argues that rights associated with the freedom of conscience are central both “to basic beliefs about human worth and dignity as well as to a free and democratic political system”. Despite the Morgentaler majority’s view that religious exercise is the paradigmatic example of conscientiously-held beliefs protected by the Charter, Wilson J. does not believe that this precludes personal moralities unmotivated by religion from receiving such benefit. Indeed, she maintains that such moralities “[…] are equally protected by freedom of conscience in s. 2(a).”

Although lacking precedential weight, these statements define the content of the s. 2(a) guarantee as both encompassing religious belief and extending well beyond it to include “whatever” other secular moralities our consciences dictate. Given the facts of Morgentaler, one such morality could support a conscientiously-held belief in the privacy rights of women against the state, while others would seem to accommodate a variety of social, cultural, and political perspectives, including atheism, agnosticism, skepticism, and uncertainty.

Recognizing Conscience in Rodriguez

Wilson J.’s construction of s. 2(a) is provided some support by Lamer C.J.C.’s dissenting opinion in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. Without citing Wilson J., he effectively adopts her definition of freedom of conscience as the prevailing wisdom, declaring that “the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions,” as well as that “an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition.”

Lamer C.J.C.’s comments are exceptional not so much for their content, which substantially borrows from Big M and Morgentaler, but for the fact that they constitute the Supreme Court’s second and only other attempt to explicitly distinguish conscience from religion.

While I recognize that it may never have been directed to do so, the Supreme Court’s failure to provide an authoritative interpretation of the freedom of conscience guarantee seems exceptional considering the political primacy of the values entrenched in s. 2(a) of the Charter.

Further, the Supreme Court’s reticence, whether intentional or not, to clearly interpret the guarantee has resulted in a number of lower courts considering “freedom of conscience and religion” to be tautologous, as if its terms are incapable of independent, although related, meaning. According with Wilson J.’s opinion, my estimation is that freedom of conscience both encompasses freedom of religion and extends beyond it to protect any number of individual, secular belief systems, with the only caveat being that the conscientious exercise of said belief systems must not trench upon the ability of others to exercise their own beliefs.

Recalling Conscience in Alberta v. Hutterian Brethren

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, is the most recent Supreme Court decision navigating freedom of conscience. While it does not especially clarify the Big M, Morgentaler, and Rodriguez line of reasoning, Abella J.’s minority opinion recalls these cases’ characterization of the freedom in her citation from Kokkinakis v. Greece, Series A no. 260-A, a European Court of Human Rights judgment which found that

[…] freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

This finding in Kokkinakis corroborates evidence from the Canadian cases suggesting that s. 2(a) must protect those conscious of secularism, including “atheists, agnostics, sceptics and the unconcerned”, because a truly free and pluralistic society is one which can accommodate a diversity of opinions.

Although compelling, Kokkinakis is ultimately a foreign judgment cited as persuasive, non-binding authority by a justice writing in dissent. Without precedential value, Abella J. does not extend Kokkinakis to the Canadian context and otherwise declines the opportunity to consider the content of the freedom of conscience guarantee, perhaps understandably, again, because she was not directed to do so in Alberta v. Hutterian Brethren‘s pleadings.

Conclusion

While it may require a breach of judicial convention, I believe that the Supreme Court should be proactive in clarifying the Charter’s substantive guarantees, and s. 2(a)’s freedom of conscience is one of the few remaining which still lack meaningful and authoritative interpretation. Affirming the freedom’s protection of secular moralities would accord with its brief jurisprudential history, but most importantly, provide recourse for potential rights claimants to defend their conscientiously-held beliefs from undue government intrusion.