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Factum

21. Even if this Court were prepared to affirm a religious exemption to the conduct of civil marriages, construing that exemption as narrowly as marriage ceremonies only, still leaves questions unanswered. Who, for example, can claim to be a “religious official” in the civil context? Does the exemption extend to a Justice of the Peace who officiates at civil marriages but whose religious convictions prevent them from conducting a same-sex marriage? If so, how do we support such an exemption without recognizing other claims by people of strong religious belief such as those opposed to issuing marriage licenses, or registering same-sex marriages, or registering the adoptions of children of same-sex parents, or giving municipal proclamations for gay, lesbian and bisexual organizations, or providing other basic public services such as access to public facilities or photocopying?

22. In addition, since an exemption would fall within the exclusive legislative purview of the Provinces and not Parliament, the language must be construed as declaratory if it is to remain in the legislation. The declaration recognizes the right, which exists independent of the legislation itself, of  religious officials to refuse to conduct religious marriage ceremonies which are inconsistent with their beliefs.

23. The Canadian Commission’s concern about extending an exemption to religious officials conducting marriages in a purely civil context, arises in part from the the history of litigation in the statutory human rights context where religious freedoms and other rights have collided. The balancing in those cases has consistently been conducted in favour of ensuring that religious beliefs to not translate into discriminatory practices in the public sphere.¹² It is not at all obvious that religious freedom would protect a public service provider from the consequences of engaging in a discriminatory practice.

24. In two human rights cases, for example, Tribunals have determined that public officials have an obligation to provide civic proclamations which endorse “gay pride” celebrations or the activities of gay, lesbian, bisexual and transgendered community groups. In those cases, freedom of speech and religion were asserted as defences to the requirement to issue the proclamations. After a careful analysis of the rights engaged by the cases, the Tribunals decided in favour of ordering the public officials to make the proclamations despite the honestly-held belief of the respondents that they were being coerced to take action which was inconsistent with their religious beliefs.¹³

25. Statutory human rights instruments do not prevent individuals from manifesting their religious beliefs, rather, they attach consequences to imposing religious beliefs on others through the denial of public services.

26. In Ross, for example, this Court upheld the finding that Ross’s continued employment as a teacher constituted discrimination with respect to educational services available to the public. This Court emphasized that public school teachers assume a position of influence and trust over their students and must be seen to be impartial and tolerant. By their conduct, teachers, as “, medium” of the educational message (the values, beliefs and knowledge sought to be transmitted by the school system), must be perceived as upholding that message.¹⁴

27. This Court also found that the order against Ross violated his freedom to hold and manifest his beliefs without state interference. This Court balanced the competing rights by considering Ross’s freedom to make discriminatory statements against the right of the children in the School Board to be educated in a school system that is free from bias, prejudice and intolerance.¹⁵

28. In conducting this balancing exercise, this court referred to the following passage from Dickson J’s reasons in R. v. Big M Drug Mart Ltd.,[1985] 1 S.C.R. 295, at p. 336:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept 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 religious belief by worship and practice or by teaching and dissemination. 

This Court then went on to say:

Indeed, this Court has affirmed that freedom of religion ensures that every individual must be free to hold and to manifest without State interference those beliefs and opinions dictated by one's conscience. This freedom is not unlimited, however, and is restricted by the right of others to hold and to manifest beliefs and opinions of their own, and to be free from injury from the exercise of the freedom of religion of others. Freedom of religion is subject to such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others.¹⁶

29. As is indicated in Ross conflicts between rights are resolved on the basis of a complex analysis of the facts and rights at stake at the section 1 stage of the analysis.