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.

Echoes of theocracy in a Canadian sub-culture

Part three in a series

Updated to include comments from a member of the Alberta Teachers Association

by Bobbie Saga

A theo-conservative sub-culture – spawned by our southern neighbours, financed by well-heeled devotees, fuelled by teary-eyed, indefatigable devotion and linked through heavyweight think tanks, evangelical churches, charter schools and the Internet – has flourished largely ignored or unnoticed within Canada for the better part of 30 years.

For the already initiated and enlightened, whose numbers have dramatically increased, they believe they are called on to be saviors for a higher purpose – "called to be salt and light in all the world."

Their aim is "God blessed" reformation of Canada’s multicultural and civil nature, an anachronism of driving Canada back into the Biblical dark ages with an exclusionary theo-conservative agenda running counter to our inclusive culture.

And they’ve taken aim for over a quarter of a century by parachuting people into key positions within the Canadian establishment, elevating those showing promise and adherence to a theocratic worldview by giving both financial and other support in the background. Many of the chosen have a cult-like following few truly understand.

Theocracy echoes throughout this sub-culture’s chamber. At the same time, carefully crafted and controlled messaging – designed to be palatable to the less enlightened, designed to garner public support, designed to score political points – is unquestionably picked up by the mainstream press that has an affection for shifting views, votes and ultimately, public policy.

Canada’s corporate media uncritically echoes the messages of this sub-culture to the masses, chanting its requiems and chattering about a families first, libertarian agenda – aiding and abetting in a process to capture and maintain political power.

But for those paying close attention, they knew something was up dating back to the mid-1980s when politics took on a new and decidedly different tone, when people like Stockwell Day began arriving on the political scene with his creationist tendencies.

Shortly thereafter, self-righteous silhouettes emerged more prominently on Alberta’s landscape with the most extreme elements of the movement showing a penchant for intelligent design.

It all seems so strikingly familiar with attempts made to influence both education and human rights policies during Alberta’s provincial election today and under the guise of standing up for human rights. And it’s déjà vu with politicians such as Rob Anderson, Wildrose Party education critic, pandering to this same and much expanded constituency, while counting on the media not to take notice of the repackaged rhetoric.

Back to the light

But long forgotten stories relegated to the annals of history and buried in morgues of Alberta’s press chronicle events that influenced policies and ultimately threatened to split Alberta’s mighty PC party.

One such story took place in March of 1994, a time when book banning was alive and well, when one defender of morality stepped from the shadows of the Legislature’s back-benches to denounce John Steinbeck’s Of Mice and Men.

Victor Doerksen, former Tory MLA for Red Deer South, stepped into the spotlight brandishing the book as one example of literary works he wanted removed from schools in the province. Doerksen referred to the passage "…too goddammed lazy…" as offensive, and said the book contained 197 other profanities – yes, someone actually went through it and counted! He also introduced a petition from 881 Albertans wanting all educational literature intolerant of religion removed from curricula and school library shelves.

Following a brief encounter with disbelief, it was pointed out that John Stienbeck won the 1962 Nobel Prize for literature and that in the presentation address, Anders Osterling, the then Permanent Secretary of the Swedish Academy, called Of Mice and Men "the little masterpiece". Osterling went on to praise Steinbeck, "With your most distinctive works you have become a teacher of goodwill and charity, a defender of human values, which can be said to correspond to the proper idea of the Nobel Prize."

Shortly thereafter, Doerksen admitted he had never read Of Mice and Men and within a week he was removed from two government education committees.

Yet playing in the shadows of education debates was another important issue: sexual orientation as protected grounds for discrimination. Canada repatriated its Constitution over a decade earlier that included the Charter of Rights and Freedoms. And following its 1982 implementation, federal, provincial and territorial governments brought in human rights legislation mirroring the Charter that today still govern human rights complaints and the processes throughout Canada. But Alberta, unlike other jurisdictions, refused steadfastly to include sexual orientation in its human rights legislation. It was, after all, a time when the once fringe of the PC Party and gay bashing articles in the Alberta Report held sway. The Alberta Report was published by current Wildrose candidate Link Byfield.

Then in 1991, Delwin Vriend, a lab coordinator at Edmonton’s King’s College, was fired from his job because of his sexual orientation. Vriend, when it was disclosed to his employer that he was in a same-sex relationship, displayed a "lifestyle choice" deemed incompatible with a newly created statement of religious belief adopted by the private religious college.

Yet when Vriend attempted to file a discrimination complaint with Alberta’s Human Rights Commission, he was refused on the grounds that sexual orientation was not protected grounds under the province's human rights code.

 Vriend sued the Government of Alberta and its Human Rights Commission, seeking a declaration from the Alberta Court of Queen’s Bench, arguing the omission breached Section 15 of the Charter. But when the Court of Queen's Bench found in his favour, the Government of Alberta, under political pressure from religious groups, appealed the decision. Then the Alberta Court of Appeal overturned the trial decision, and that decision was, in turn, appealed to the Supreme Court, which ruled in Vriend’s favour. The SCC ruled (excerpt):


 Far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antithetical to that goal. With respect to minimal impairment, the Alberta government has failed to demonstrate that it had a reasonable basis for excluding sexual orientation from the IRPA [Individual’s Rights Protection Act]. Gay men and lesbians do not have any, much less equal, protection against discrimination on the basis of sexual orientation under the IRPA. The exclusion constitutes total, not minimal, impairment of the Charter guarantee of equality. Finally, since the Alberta government has failed to demonstrate any salutary effect of the exclusion in promoting and protecting human rights, there is no proportionality between the attainment of the legislative goal and the infringement of the appellants’ equality rights.
It did not take any time following the April 2, 1998 ruling before the Alberta Government announced it was considering invoking the Constitution’s notwithstanding clause to opt out of the ruling. A backroom brawl ensued principally between Ralph Klein duking it out with Stockwell Day, who was pushing for usage of the notwithstanding clause.

But in the wake of the government’s announcement, a group calling itself the Alberta Human Rights Coalition that supported the SCC ruling went into high gear lobbying every single MLA in the province, plus staged a celebration on the steps of McDougall Centre in Calgary in an effort to put a spotlight on the issue. Religious groups, however, pushed back, taking out full page ads in most of Alberta’s daily newspapers that were deemed by some legal experts to be "one word shy of hate speech" against gays and lesbians. Their publication touched off a bitter firestorm of controversy that soon led to an announcement by the government that it was allowing the SCC ruling to stand. Klein had won the brawl, but paid a political price.

The case was not against King's College, and Vriend never pursued a human rights complaint against his former employer. The case strictly involved whether provincial Human Rights Commissions could, under provincial legislation, investigate claims on the basis of sexual orientation. Nor did the ruling set any legal precedent for the resolution of such claims. That was left to the Human Rights Commissions, independent from government bodies mandated by legislation and supported by case law to mediate resolution to thousands of disputes arising each year throughout Canada (more on that in my next post).

Vriend vs. Alberta still stands as one of the most important rulings by the Supreme Court with the decision since being used to argue provincial cases against bans on same-sex marriage. In addition, the decision has greater ramifications within Canadian law outside of sexual orientation issues. It helped shape legal precedent concerning provincial and federal government relationships as well as labour and other civil rights and constitutional laws.

Old arguments die hard

As far as the issues being raised in Alberta’s current education debate over the now defunct Bill 2, it is not freedom of religion itself that is at issue but whether exclusionary forms of education can or should be in the bailiwick of publicly funded education. The Supreme Court says no, but both home-schooling parents and candidates from the Wildrose Party say yes as does Bill 44 that was brought in by the old guard of Alberta's PC Party who have mostly jumped ship or changed political allegiance.

The groups wading into the debate cut and paste from each other, filling boards and blogs alike with their self-regarding opinions that are smugly self-righteous and tinged in no small way by self-interest. All are endorsing one another’s deeply flawed conclusions.

And as Jonathan Teghtmeyer from the Alberta Teachers Association points out, the arguments being put forward by those representing home-schoolers are "illogical."

"Many home-schooling parents suggest that the lines between class time and home time are blurred, and since their home is defined (according to the act) as a school, any conversation in their home would be subject to the Alberta Human Rights Act and, under Bill 2, discussions around the kitchen table could be governed by legislation. Some believe that Bill 2 would, for example, prevent parents from teaching their particular views on homosexuality or abortion," Teghtmeyer said.

"These complaints are unfounded and ridiculous," he continued.

"The Canadian Charter of Rights and Freedoms is part of our constitution and applies to legislation and programs of study regardless of whether a provincial education act refers to it or not. As for the Alberta Human Rights Act, it also expressly applies to all legislation in Alberta."