Friday, 6 April 2012

Wildrose Party policies defile Canadian Charter of Rights and Freedoms

by Bobbie Saga

Wildrose Party leader Danielle Smith refused to say Wednesday whether she personally believes in the concept of "conscience rights."

It’s a concept whereby commissioners can opt-out of marrying same-sex couples, or doctors can opt-out from prescribing birth control pills to a patient, or family planning counselors can opt-out of referring women for appropriate family planning – all in the guise of freedom of conscience and guided by a person’s values or beliefs.

It seems an unbelievable concept, this twist of Canadian Charter rights that cloaks discrimination. Yet the specter of religious fanatics and their nefarious influence are pushing for such policies, most notably within Alberta’s far right of the political spectrum. And it’s become a familiar aspect of Alberta’s provincial election with home-schooling parents pushing for their "god given right" to pick and choose what’s taught to their children in a publicly funded education system, or the chant to limit access to justice by way of abolishing the Human Rights Commission (HRC).

These intolerant polices should scare anyone who believes in a respectful society whereby everyone's rights are taken seriously and are balanced with competing views and guided by the Charter of Rights and Freedoms and not by one's personal values and beliefs. The whole concept smacks of state-sanctioned bigotry and justification for zealots imposing their views and values on the rest of society. Plus, it does so in tandem with another Wildrose policy that taints the purpose and value of HRCs and would limit access to justice for only those well-heeled enough to afford it. Indeed, in the November/December 2010 issue of Canadian Human Rights Reporter, it was noted that, "none of the last five full external reviews of human rights processes in Canada have seen any merit in abandoning human rights tribunal systems in favour of high courts!"

How is this "conscience rights" policy any different from the Jim Crow laws in the US that allowed systemic discrimination and widespread de jure racial segregation in all public facilities with a supposedly "separate but equal" status for black Americans? This separation led to unequal economic treatment in bank lending practices, in employment, in education, in housing with all leading to social disadvantages for one segment of the population.

It seems, however, Ms. Smith does not wish to publicly acknowledge the toned-down word -- that is, the government "should" implement conscience rights. The party's 2010 policy handbook says a Wildrose government "will implement legislation protecting the conscience rights of health care professionals." But the 2012 Wildrose platform has that one different word on the subject, which hopefully should put tarnish on a carefully polished campaign.

Conscience rights are hotly disputed in other jurisdictions, as they tend to involve medical professionals refusing to perform or counsel for procedures they have moral objections to. These procedures include abortion, sterilization or other forms of birth control. There have also been civil commissioners opting out of marrying same-sex couples. Just last year, Saskatchewan’s Court of Appeal upheld the principle that those sworn to carry out public duties cannot unilaterally pick and choose parts of their job they will perform. That case involved a marriage commissioner refusing to perform same-sex marriages because of his religious beliefs.

What’s disturbing is that since this story broke in the mainstream press, there are comments popping up on media boards and blogs suggesting those who question or oppose such policies should have more respect for politicians holding religious values. Ignorance is bliss, I gather.

Most reasonable people, I suggest, don’t have a problem with politicians of faith. Rather, they have a problem with those seeming to believe that their religion gives them greater moral authority than those who don’t share their particular set of values and beliefs. It should not – and does not – under Canada’s Charter. I would further suggest that most reasonable people would draw the line at politicians using their belief system to justify casting out those who don’t share their bigoted beliefs. Democratic policies are supposed to be inclusive and government is supposed to govern for all people.

Are we now so far distanced from the past that we have forgotten the mistakes of the past? I would hope not. But asked repeatedly about her stance, Ms. Smith dodged reporters' questions, stating only, "I'll tell you where I stand… I am fundamentally a populist… I fundamentally believe that Albertans should decide the direction of the province."

That is not good enough, Ms. Smith. It is blatant deflection on an exceedingly important question, a question of state-sanctioned discriminatory policy you have previously gone on record endorsing.
It’s a simple question, so answer it and allow the people to decide if this is what is truly wanted for the future of Alberta.


  1. Actually, "conscience rights" are nothing new. They are actually guaranteed in the Charter itself in Section 2a.

    Respected Supreme Court of Canada Chief Justice Dickson wrote, "It should also be noted, however, that an emphasis on individual conscience and individual judgement also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as "fundamental." They are sine qua non of the political tradition underlying the Charter." (R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295)

    The "scary" thing, I think, would be a government that would force its citizens to commit acts that run counter to their morals. That sort of stuff happens regularly in totalitarian states. It should never happen in democratic ones.

    1. The notion that I wrote “Conscience Rights” are somehow new is twisting my words. Freedom of conscience was part of the 1960 Canadian Bill of Rights and enshrined in International Covenant following WW II.

      What is new, however, and perhaps you missed the point, is a concept that defiles the Charter. Your positions conveniently ignores Section 1 of the Charter and its importance, while inflating Section 2 as rights that are somehow absolute, which the SCC has repeatedly ruled they are not. Since the Section 1 limitation is applicable to all Charter rights, no matter how broadly freedoms are defined by some, any rights defined – implicitly or explicitly in Section 2 – will always be restricted by “reasonable limits.”

      Few would argue, for example, there should be limitations on child pornography. And hate speech can be exceedingly harmful, plus has no truth value, so it too is restricted, not just by the courts, but also by the Criminal Code. Discriminatory speech has repeatedly proven itself able to unify supremacist-minded individuals. These are just two examples.

      As well, history gives every democratic society cause for concern and reason for limitations. In the hands of charismatic leaders, bigotry based on stereotypes can and does energize movements to discriminate and sometimes commit violence and atrocities.

      And since you point to Big M, Canadian jurisprudence on freedom of religion has numerous examples of courts accepting certain circumstances as violations of the freedom of religion, but decided that violation of the freedom of religion is reasonable under Section 1 limitation. But nice of you to point to a case without giving it context or an explanation of the facts or cases cited in the ruling thereby taking it out of context.