Dief the Chief's Bill of Rights

Yesterday's 50th anniversary seems to have passed unnoticed by most Canadians, except the editors of the Toronto Star: Diefenbaker’s Bill of Rights an act worth remembering. The nonentrenched Canadian Bill of Rights is still in effect, but its place in the consciousness of the nation has largely been supplanted by the entrenched Charter of Rights and Freedoms (1982).

Canadian court defends religious freedom . . . or does it?

The Charter of Rights and Freedoms claims to guarantee all Canadians certain fundamental freedoms, including “freedom of conscience and religion” and “freedom of association.” However, following American precedent this country’s courts have tended to interpret religious freedom rather narrowly, viz., as the right of individual citizens to worship freely. Whether communities are recognized to possess religious freedom is unclear in contemporary jurisprudence, given the dominating influence of liberalism.

Take the recent case of Heintz v. Christian Horizons. Christian Horizons is a more than 40-year-old organization dedicated to the care of mentally handicapped persons. Like many confessional organizations, it has a faith and lifestyle statement which employees are required to sign. Ten years ago an employee was dismissed for not living up to this statement. She filed a complaint with the Ontario Human Rights Tribunal, which ruled in her favour two years ago, holding that a Christian ministry could not impose such requirements on its own employees if it served the larger community rather than its own members. On appeal, however, the Ontario Divisional Court in Toronto upheld the right of Christian Horizons to adopt such a statement. Or did it?

The Evangelical Fellowship of Canada immediately claimed victory for charities across the country. Others were not so sure: Faith-based charity ruling too murky, experts say. Even the EFC’s general legal counsel Don Hutchinson, writing in the National Post, was less than favourably impressed by the ruling: Heintz v Christian Horizons: Solomon would not approve. So is religious freedom in Canada secure? Despite the Charter guarantees that appear to say yes, court interpretations leave the matter open.

While we are on the subject of religious freedom, I will take the opportunity to call American readers’ attention once more to the important work being done by my friend Stanley Carlson-Thies and the Institutional Religious Freedom Alliance in Washington, DC, which “works to safeguard the religious identity and faith-shaped standards and services of faith-based organizations, enabling them to make their distinctive and best contributions to the common good.” Given the high stakes involved, it deserves the moral, financial and prayer support of the larger Christian community. Right now we could use such an effort in the True North Strong and Free.

Rights, freedom and justice

The following article appears in the new issue of Christian Courier dated today:

In our postchristian society, appeals to human rights have become the functional equivalent of the biblical prophets’ “thus saith the Lord.” They are treated as the final word on a subject, and those disputing such appeals are likely to be marginalized as heretics. In such a climate, some people are tempted to give up altogether on the concept of rights, simply because so many tend to use it as a justification for subjective wants. Yet the abuse of something cannot rule out its legitimate use. There are two foundational problems with the current legal climate surrounding rights.

First, we tend to assume that all rights are justiciable, that is, properly to be brought before a judicial or quasi-judicial body to be settled in case of a claimed violation. However, this is an erroneous assumption that is incompatible with constitutional government and a recognition of the legitimate multiplicity of legal spheres. Matilda can be said to have a genuine right to her husband Frank’s love. Yet the state cannot force Frank to love his wife, because spousal love lies outside the proper competence of governmental authority.

So how would a violation of such a right be addressed? Primarily within the marital context itself. If Matilda feels that Frank is not paying enough attention to her, she does not complain to a human rights commission; she takes it up with Frank by reminding him of his responsibilities as husband. If this has no effect and if Frank stubbornly refuses to listen to and love her, there’s always the possibility of divorce. Yet even in this case the state has not really forced Frank to love Matilda; it has simply recognized the dissolution of their marriage. To be sure, the state has stepped in here, but only as a last resort. Respecting and protecting spousal rights properly belong to the spouses themselves, and perhaps to those who witnessed their vows. Government does not create these rights; it only provides a legal backup in case the marital community irreparably breaks down.

Second, the late Sir Isaiah Berlin famously distinguished between negative and positive freedoms, between “freedom from” and “freedom to.” In the past most bills or charters of rights limited themselves to protecting certain negative rights, including those to freedom of speech, religion, press, association and the like. Such rights call on government simply to refrain from breaching them. No extra expenditure of funds is required. In fact, a government may actually save money by closing down an agency responsible for censoring books, periodicals and broadcasting. In so doing it is recognizing that there are certain activities lying beyond its normative competence.

When we get into the realm of positive freedoms the issue of rights becomes more complicated. In a democracy, of course, government undertakes to protect the right to vote, which is the most basic positive right. However, “freedom to”, if wedded to an expansive notion of rights and their justiciability, is incompatible with a recognition of limits to government. If I claim to have a right to nourishment, does that obligate government to force the local grocer to provide me with food?

If I claim a right to have my idiosyncratic lifestyle choices affirmed by society, does this entail government forcing others to express support for me and shutting down all expression of disapproval? If so, that does not fit at all well into a robust notion of constitutional government. Yet this is where much of North America appears to be going at present.

Repealing our Charter of Rights and Freedoms is not the answer. What needs to be changed is the willingness of our courts to treat mere policy aspirations as potential rights; instead they should return them to the ordinary deliberative processes crucial to representative government.