By Mary Anne Waldron

THERE ARE several ways a lawyer can approach a body of case law. As legal counsel advising a client, you try to analyze what the courts have done in a way that can predict for your client what the court will do in the future. In traditional legal scholarship, on the other hand, legal academics often analyze the cases by trying to synthesize them into a body of legal principles and critique the cases by finding them either consistent or inconsistent with those derived principles. A third way of handling a group of cases is to set the case law in some broader social context and critique it based upon how it fits in that context and how well it tackles the social problems it appears to be intended to grapple with and solve.

This third approach has become very popular with legal academics and the cases on freedom of conscience and religion have been analyzed in a number of contexts. But perhaps the most common context in which they are set is that of multiculturalism. The courts too have often seen freedom of conscience and religion as a vehicle by which Canada's commitment multiculturalism can be protected in our society. However, the cases on freedom of conscience and religion under the Charter and on closely related prohibitions on religious discrimination under human rights codes deal with broader social issues than simply multicultural ones. Indeed, even in the cases that consider rights of cultural or religious minorities in Canada, it would seem that more may be going on than a straightforward question of preserving cultural identities.

Consider, for example, the public outcry that greeted an Ontario lawyer's suggestion that he would open an institute to apply sharia law in arbitration proceedings to family or estate matters. Canadians from many backgrounds expressed hostility at the idea that women, acting with free choice, would choose the application of sharia law. The hostility toward the idea was so pervasive that the Ontario government amended the Ontario Arbitration Act to prohibit the application in arbitration proceedings of any law other than that of Canada and Ontario. The severe public reaction suggests that more is seen to be at stake than preservation of cultural difference.

Indeed, that controversy seems to have a lot in common with those that arise in non-multicultural contexts, for example, when because of religious belief a mature minor expresses a wish to refuse blood transfusions that have been medically recommended. In considering such a request, one doctor who follows these controversies stated that, "There is absolutely no way - when someone has been told their entire life, 'You'll lose your chance at eternity if you accept blood' - that you could accept blood. She may feel it's a free decision, but it couldn't possibly be."

The common thread in these controversies, I suggest, and the context in which I wish to consider cases in which parties assert their freedom to express their religious or conscientiously held beliefs and be protected by the legal system in doing so is that of moral conflict. Scholars have suggested that moral conflicts present a number of common factors that make them among the most difficult to deal with in public debate. They tend to generate greater tension than might be expected from most disagreements. In debating the issues, people tend to revert to rhetoric rather than logic and often engage in vituperative comments. One side of the conflict often calls for the imposition of its views on the other, frequently justifying that imposition by denying that the other is acting in a free and autonomous fashion. The differences in the underlying belief systems, which are in fact responsible for the conflict, are usually ignored or treated dismissively. Language itself becomes contested as parties to the conflict use the same words - words such as tolerance, discrimination and equality - to mean different things. Thus, the reasoning of one side is often virtually incomprehensible to the other.

As our society diversifies more and more, not only through immigration, but through proliferation of various belief systems, religious and otherwise, that attract adherents to an ever-widening range of ideas and ideals, I suggest that we need to examine the role that our courts play in handling the ensuing conflicts. Most of us would be more comfortable living in a society that reflected our own moral and ethical conclusions. However, rooted in belief systems that vary widely and that are not reconcilable - what have been described as "incommensurate" belief systems - moral conflicts are not amenable to a solution that produces uniformity of belief and where there is no uniformity of belief, there will be considerable disagreement on a wide variety of social issues. The core question is: How do we live together in peace, given our dramatic differences in belief and the differences to which these give rise?

At this time in our history, I suggest that our courts are not making the contribution they should to answering this question. The legal system cannot pretend to be able to resolve conflicts in belief - a court case rarely changes hearts and minds. But courts could contribute to creating a structure in which those holding a multiplicity of incommensurate belief systems can live together in civility and participate mutually and equally in policy formation. Courts' normal approach to conflicts before them, developed from British common law in which one decision is made at a time only on the facts before the court and legal principles are shaped incrementally has served Canadians poorly when the courts have been required to consider issues of moral conflict. In law school and in practice, judges develop an understanding of legal concepts which prepares them to deal with traditional areas of legal dispute such as property, contracts, civil wrongs or criminal conduct. However, little prepares them for understanding moral conflicts in which they are not only judges, but inevitably participants to some degree based upon their own belief systems.

While Canadians seem to have a world-wide reputation for accepting other cultures and other perspectives, recent events and polls suggest that some of this "niceness" is wearing a little thin. The Bouchard/Taylor Report found considerable animosity toward accommodation of differing religious views and practices; a recent survey in MacLean's magazine suggested that this attitude was not confined only to Quebec. The outcry in Ontario about sharia law (which I will return to later), the considerable body of case law dealing with issues of religion and conscience in the public schools, and indeed incidents on our own campus of intolerance and conflict over matters of conscience suggest that Canadian society is not handling moral conflict as well as it could.

Left without alternatives, judges often unreflectively adopt one side of the conflict and use the force of the law to impose it. Often a strong dissenting opinion takes the other side of the controversy. But because of the nature of moral conflict, as I have just noted, the result of this approach is simply to increase tensions as the losing side finds the decision incomprehensible and unjust. Based on work such as that by Pearce and Littlejohn in dealing with moral conflict in public debate, I suggest that courts would be better advised to look for over-arching principles that can enable the court to hold an even hand between and among competing beliefs until a social consensus emerges. When (or if) that happens, then the court's role may change to become that of protecting the minority who may not accept that consensus from unreasonable or unnecessary restrictions from the majority. The Charter, which confers the fundamental freedom of conscience and religion on all Canadians and then delineates the extent to which the state can go in restricting that freedom in the name of social consensus, seems to provide an ideal vehicle for accomplishing this task. However, if the courts fail to develop and apply these over-arching principles, I suggest that the opportunity presented by the Charter to handle moral conflicts will simply become Canada's wasted opportunity.

What I would like to do today is give a brief sampling of how some these "overarching" principles might be derived, starting with a re-examination of the purpose for which freedom of conscience and religion is required in the democratic state. I will then consider briefly as well how application of these principles might change the legal landscape of the freedom of conscience and religion jurisprudence.

Part 1

Let me start then with a statement of the purpose of freedom of conscience and religion in Canada. In Big M Drug Mart, the first case under the Charter to consider freedom of conscience and religion, Dickson J. acknowledged that the freedom was "the absolute prerequisite for the legitimacy, acceptability and efficacy of our system of self-government." The reason this is so, he stated, is that it protects "the ability of each citizen to make free and informed decisions".

However, apart from this and similar general statements in a few other cases, rarely in the case law is freedom of conscience and religion considered in light of its role in democratic processes. Yet the Charter itself recognizes freedom of conscience and religion, along with freedom of expression and association, as fundamental. Fundamental to what, we may ask, if not to the existence of the democratic state? Moreover, in determining whether citizens' freedoms can be over-ridden legitimately, courts are instructed to consider whether the impugned measure is justifiable in a free and democratic society. This strongly suggests that freedom of conscience and religion (as well as the other fundamental freedoms) should be tied to the touchstone of how it affects the democratic processes.

If we acknowledge that moral conflict is pervasive and ineradicable in our society, then we can understand one aspect of our democratic society as a series of multiple conversations, held between groups or individuals, through private communications or through media to persuade and convince others. This persuasion usually is not directly addressed to the superiority of the proponents' belief systems, although it may be. More commonly, it tries to assert the preferable nature of the consequences of those belief systems on social and legal policy while the underlying beliefs are assumed or ignored. If these "conversations" (as we may call them in a very general sense) are how we make public decisions (and I would argue that they are), then openness of the conversations to expression of all views is of the utmost importance. Hence, freedom of conscience and religion performs not only the role identified by Dickson J. of allowing citizens, in private, to make up their minds freely but also has a public role of keeping open the democratic debate to persons of all beliefs and opinions.

In consequence of this principle, we can suggest that courts should protect and facilitate public expressions of belief of all kinds. But when we look at the results of the case law, we tend to find rather courts' acting to suppress expressions of public belief at the behest of those offended by them. In Big M Drug Mart itself, the court struck down Sunday closing laws primarily on the ground that being required to refrain from work on the Christian Sabbath was offensive to non-Christians. In Freitag v. Penetanguishene, the court ruled that it was a violation of freedom of conscience and religion to allow the mayor to invite persons at a town council meeting to stand and recite the Lord's Prayer as the court characterized it as an "effort to impose a Christian moral tone" on the meeting.

These decisions, in their result, made good social sense. Sunday closing laws, by the time Big M Drug Mart was decided, were no longer an expression of the faith of Canadians and town councils, if they wish to continue to be elected, would do well to consider the sensibilities of all their constituents, not just some. But using freedom of conscience and religion to strike down these practices, rather than leaving them to social and political decision-making, has produced a number of unfortunate results. For one thing, the decisions reveal a number of inconsistencies. In a later case, for example, an atheist challenged the use at a town council meeting of a broadly theistic prayer. The court dismissed the case. Yet this case cannot be adequately distinguished from Freitag. What is the difference between an effort to impose a Christian moral tone or a theistic moral tone? Each will appeal to or alienate specific belief groups in the population. Similarly, at the root of the Big M Drug Mart decision is a very questionable definition of what constitutes "coercion" of religious practice. This was a definition that came back to haunt the court when, in R. v. Edwards Books, the court upheld Sunday closing laws that were intended to give a common day of rest. The more significant issue in both cases - the burden Sunday closing laws placed upon non-Sunday observing religions and whether that burden was allowable - was ignored in Big M, but was held by the court to be pivotal in Edwards Books.

More significantly, I think it can be convincingly argued that these cases have reinforced the idea that we are entitled to be legally protected from ideas and expressions of belief with which we disagree but which do not substantially interfere with our own expressions of belief. This is antithetical to the purpose of equal participation in public debate for which the freedom exists. The courts justified their decisions, in part, as the protection of minority beliefs against the majority will. However, as I have already noted, there was little evidence in any of these cases that the conscience or religious expression of minority groups was interfered with in any significant degree; rather, a key factor in promoting democratic openness was ignored. Instead of encouraging a public familiarity with expressions of a multiplicity of beliefs, the decisions not only repressed the public expression of some beliefs, but also suggested that one segment of society was justified at feeling resentment at the expression of the beliefs of another segment. Although the decisions purport to protect the sentiments of minority groups, I think we can observe that the majority has not been long in adopting for itself the same attitude here apparently sanctioned by the courts.

Part 2

If the purpose of freedom of conscience and religion is to facilitate equal participation in open democratic debate, and, as a consequence, a democracy will function best if its institutions facilitate comfort with the public expression of diverse opinions and beliefs, then it should also follow that freedom of conscience and religion ought to be interpreted to protect citizens' rights to change their minds about their convictions. One reason, I would suggest, why public sympathy to the protection of freedom of conscience and religion has been less robust than public sympathy for protection for some other rights is the accurate understanding by the public that matters of conscience and religion are not immutable: people do change their beliefs, whether through cultural influence, generational change or radical conversion. Thus we have often less sympathy for protection of someone's conscientious convictions which we, applying our own beliefs, judge both could and ought to be changed. But this potential change of mind is also at the core of the democratic process. Thus where legal protection of a belief system will lead to a legally or practically irreversible decision, the law should attenuate protection of those beliefs and favour delay of that commitment.

An interesting example of this situation was the problem of sharia law in Ontario. I have already adverted to the issue: the provincial Arbitration Act, under which people can resolve their legal differences through a private arbitrator, using whatever principles they choose to regulate their own affairs, was touted by some Islamic groups as providing a way in which family and estate matters could be resolved by sharia law. The parties would agree to the application of those principles by an arbitrator; the arbitrator could then make a decision legally binding on the parties applying those principles to which they had consented.

The announced intention of using the Arbitration Act in this way precipitated public debate into the typical structures of moral conflict. Not only did many women's groups object to the use of the act in this way, they expressed disbelief that anyone could freely agree to be governed by principles that did not conform to fairness and equality as they understood those ideas. Others resented the implications that they were incompetent to make their own choices.

Harsh words were spoken on both sides of the conflict. The Ontario government appointed Marion Boyd to investigate. She recommended allowing the continuance of the practice, but amending it somewhat to ensure that women consenting to the arbitration process were acting freely. The government, however, was faced with ongoing, at times inflammatory controversy over the thought that parties could govern their family matters in accordance with sharia law. In the result, the government amended the Arbitration Act to prohibit the application, in family and estate matters, of any law other than that of Canada and Ontario.

This decision by the government could be seen as the adoption by it of one side of the moral conflict, making a choice of equality rights over freedom of conscience and religion. If so, then the fact that it was promulgated through legislation does permit us to see it as the result of the democratic process and the public debate in which the will of the majority was strongly expressed by many individuals and groups. We cannot deny the right of the legislature to adopt a particular side in a moral conflict, even though judicial protection of freedom of conscience and religion might impose some limits on its effects.

However, in fact the legislation does not prevent parties from using sharia law. A husband and wife who choose to divorce in Ontario can still enter into a private contract that will, subject to certain safeguards exercised by the courts, arrange their affairs on the basis of sharia law. What they cannot do is to have the matter decided by an arbitrator who is empowered to apply sharia law. When one agrees to a contract, one is aware of all its terms and has given consideration (presumably) to its effects. However, when one agrees to arbitration, one has agreed to the process and to be bound by the effects of that arbitration, whatever they may be.

For these reasons, the action of the Ontario government can be seen as illustrating a reasonable solution to a moral conflict rather than a simple adoption of one side. Religious persons are still free to organize their affairs on the basis of sharia law; it is simply that they will now have to do so by contract. The moment at which the decision is legally irrevocable is thus postponed and the information available before the final point is reached is increased.

The Jehovah Witness blood transfusion cases could also be looked at in light of these reflections. In a recent decision, the Supreme Court confirmed that a mature minor may be able to refuse, in some circumstances, consent to a transfusion. However, reviewing decisions of courts on this matter, we can observe that judges have been, and will no doubt continue to be, very reluctant to sanction such refusal. The debate in the courts has usually been framed as an issue of autonomy: When can we say that the minor is acting freely and with a mature understanding of the consequences? But as we can see from the example we have just discussed, understandings of autonomy and free choice are concepts that are part of the moral conflict itself. How free and autonomous are any of us and how free and autonomous need one be to make a decision with serious consequences? Our answer is likely to depend upon deeply held beliefs.

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Rather than justifying the decision through this contested language of lack of autonomy, we might question the strength of the claim to protection of religious freedom in these circumstances. Raising one's right to freedom of conscience and religion to protect an expression of belief that requires one to make the irrevocable choice of death asks the law to use the freedom to contravene one of the purposes for which this freedom exists: preservation of the right to alter one's opinions at a later time. Thus, the claim to protection of freedom of conscience and religion is a weak one. And the more life-threatening the situation and the more likely the treatment will result in a cure or significant remission, the weaker the case is to allow the minor's freedom of religion to over-ride legislation under which courts are empowered to protect minor's welfare.

Part 3

To build on our first principles, if freedom of conscience and religion is viewed in its role as a fundamental contributor to democratic processes, then courts in interpreting the freedom should aim both to promote and protect the broadest possible public expression of difference and also to promote and protect the rights of citizens to a possible future change of conviction. This picture leads also to understanding that our public conversations are comprised of individuals and groups who are constantly making an effort to convince others - to proselytize for the policy choices that their belief systems cause them to choose. Freedom of conscience and religion needs also therefore to be interpreted so that it may play a role in ensuring fair rules of engagement in this process. One such role is the protection of some public spaces as neutral zones in which neither side of a moral controversy is given free rein to press its views.

One legislative creation that recognizes such neutral zones is the limit on picketing within certain distances of abortion clinics. In cases such as R. v. Lewis, courts have quite consistently upheld these restrictions. The question of regulation of abortions is a current example of one moral conflict in our country. Most Canadian governments have adopted, through a variety of policy choices, the right to unrestricted, publicly funded abortion. However, this choice is still and is likely to remain a hotly contested one. While this debate is carried on through various means and courts have supported the rights of organizations and individuals to do so, the limit imposed by legislation have been thought to be justified because of the vulnerability of the women seeking to access a clinic.

The idea that spaces in which the recipient of an attempt to convince must be subject to some control can be elaborated upon, using the limit on picketing abortion clinics as illustrative. To qualify as a "neutral space" we must be looking at a situation in which the target audience, for one reason or another, will be a vulnerable one; second, it will have no real opportunity to refuse to hear the message or to leave; and third, it will have no opportunity to enter the debate on equal terms. The solution to the problem of such spaces can be selected from a range of reasonable ones: the target audience may be exempted from hearing the communications, if that is feasible; alternatively, the opposing view may be granted "equal time" to communicate; or, thirdly, both sides of the conflict may be required to leave their opinions at the door if neither of the first two solutions is possible. Only the last of these options requires limits to freedom of conscience and religion and, even then only a very narrow situation.

Such neutral space arguments, I would argue, apply to the public school system. A considerable body of case law exists in which various factions contest for their views to be heard or others' excluded from the schools. At this stage, I suggest that the decisions present inconsistencies. In the Zybelberg decision, for example, the Ontario Court of Appeal struck down a legislative provision requiring some form of prayer and some form of religious reading to open the school day despite the legislative allowance for readings from a variety of belief systems (including atheism) and despite a provision for excusing students altogether from the practice. On the other hand, the Supreme Court of Canada struck down as unreasonable a political decision by a school board to leave books portraying same sex parented families out of a kindergarten class. In both cases, the neutrality of the school was set aside in favour of one side of the moral controversy. However, in one case the court found it quite reasonable to respect the wishes of a minority of parents to keep their children from exposure to varying opinions; in the other, responding to those wishes was considered unreasonable.

The courts have also struggled with the issue of teachers broadcasting their opinions about contested moral or political beliefs on their own time. In these cases, courts have often been willing to see teachers disciplined for bringing the school system into disrepute. But because these cases dealt with teachers' personal expressions of belief, they have required courts to limit freedom of conscience and religion or freedom of expression by attempting those rights against the need to keep schools "tolerant" and "discrimination free". Such efforts at balancing rights are often difficult to justify. In the end, it often appears a choice to sacrifice one party's rights in favour of the other's rights that relies upon the personal convictions of the court. Using the terms "tolerance" and "discrimination" is of little help since the meaning of those terms is often contested and there may be no agreement on what constitutes illegal discrimination or who should be tolerated about what.

One teacher whose discipline was upheld by the court had written to the local paper expressing negative views on homosexual relationships. He had clearly stated in his letters that he intended to put these views forward as a counselor in the school system. The court found that this indicated an intention to "discriminate" against gay and lesbian students in the school. More difficult was the case of Mr. Ross who held extreme anti-Semitic views and promulgated them through books, and media interviews. The problem was that he was not shown to have discriminated against any student in the school classroom, despite the fact that his teaching had been under close scrutiny for years. The court was required to resort to some very turgid reasoning to justify why he should be removed from the class room under these circumstances.

Both these cases, I suggest, could have been more easily and rationally justified by appealing the need to maintain the public school as a neutral place in moral conflict in which teachers are allowed, of course, to maintain their own beliefs, whatever they may be, but not to attempt to convert their students to them. In my first example, the teacher had admitted his intentions in his own letters; in the second, Mr. Ross had displayed his views so broadly and with such publicity as to certainly reach his students and evidence suggested that his views had been influential on student opinion. Much of what was said in these cases would fit with this simpler analysis of the problem. I suggest this principle would also help solve more rationally the kinds of conflicts in the cases I have noted above. It would do so without appealing to the very language of the moral conflict itself.

Part 4

As the Charter affirms citizens' freedom of conscience and religion, it also, as I have noted in passing, provides the mechanisms whereby restraint of that freedom by state action can be legally justified. This, of course, is through the limitations expressed in s. 1 that the rights and freedoms of the Charter can be limited by measures imposed by law and justifiable in a free and democratic society. I have already mentioned two situations in which I suggested that such limits were justifiable: where the freedom is being engaged to restrict the circumstances in which one may be convinced to change one's belief and to protect certain public spaces as neutral zones in moral contests. In both these cases, the justification for the restriction lies in the purpose of the freedom itself. In more general terms, I think we can imply that when the state has adopted a measure that restricts freedom of conscience and religion of some, courts should consider the purpose of freedom of conscience and religion in applying the tests to determine whether the limit is justifiable under the Charter or not.

Up to this point, courts have often treated freedom of conscience and religion as not as much about democratic processes as about equality - protecting the minority from unequal treatment arising from the intended or unintended consequences of majority rule. In Canada, as has been observed by other scholars, our notions of minority protection have largely been implemented through the mechanism of accommodation - a process by which individuals are required to be given exemptions from rules or policies that impact them differently because of specific characteristics, including religious belief. In that case, an adjustment to the rule or policy is required unless it would amount to an undue hardship. Because freedom of conscience and religion cases often arise when an individual claims an exemption from some rule or policy, it is easy to consider these cases as a kind of claim for equality rights. Indeed, the Bouchard/Taylor Report conflated both Charter claims for freedom of conscience and religion and cases under provincial human rights codes, characterizing them all as implementation of substantive equality rights.

Treatment of freedom of conscience and religion as a subset of equality rights has appeared to have one positive effect. Courts have generally been generous with accommodation of minority religious practice in the face of rules that effectively prevented the expression of minority faiths. This has no doubt expanded the visibility of religious practices and contributed to the core purpose of the freedom of promoting democratic engagement for all.

Thus, when young Mr. Multani was prohibited from wearing a kirpan to school because of safety concerns; he challenged the school board's ruling and, the Supreme Court of Canada held that his right to obey the dictates of his religious faith must not be subordinated, in this case, to the "no weapons" policy of the school. Precautions, the court held, could be taken to ensure reasonable safety and reasonable safety is all we can expect in any case.

Similar high profile cases have allowed Orthodox Jews to build temporary shelters on their condominium balconies to celebrate their festivals and Sikh Mounties to wear turbans as part of their uniforms. It all seems very positive and very "multicultural" in Canada's best tradition. But it has not always sold well to the public. I have already mentioned the Bouchard/Taylor report and its discussion of what the Commission called a perceived "crisis of accommodation" in which the public believed that majority values were being set aside to accommodate the minority, particularly in the area of religious expression.

Unfortunately, equality rights are themselves part of a hotly contested moral conflict in Canadian society as the Bouchard/Taylor report revealed. While most Canadians would state that they favour "equality" for all citizens, closer examination reveals that the issues of equality for whom, under what circumstances, at what cost and in what way are in many cases controversial. Using the language of equality, tolerance or accommodation as the primary justification for permitting a plurality of openly lived belief systems does not resolve the moral conflicts these visible belief differences evoke nor does their invocation convince any but those already convinced.

As should be expected, given public antagonism to some religious accommodations and the lack of justification for these cases in other than contested terms, some inconsistencies and problems have begun to show in the courts' decisions as well as in the public perception. A Hutterite colony wanted an exemption from being required to have their photographs on drivers' licenses because of their religious belief that it was prohibited by Scripture. The Alberta government, while having granted such exemptions in the past, decided to cancel the program to improve its facial identity data base and to protect the licensing system from the risk of being used in identity fraud. In this case, the majority of the Supreme Court allowed the government to define its purpose in reference only to the driver licensing system, not to the broader question of how significant the exemption would be in generally preventing identity fraud in the province.

This decision reveals inconsistencies with the earlier decision of the Supreme Court in Multani. For example, the majority in the Hutterian Brethren decision stated that the impact on the Wilson colony of being able to have no members with drivers' licenses was simply an "increase" in the cost of abiding by their faith. It distinguished the situation of Multani where the school board's action was said to deprive him of a "meaningful choice" to practice his faith. This distinction does not hold up under scrutiny. At the time Mr. Multani's appeal was being heard by the Supreme Court, he was attending a private school in which he was allowed to wear his kirpan. The difference was that he was not allowed the school of his choice, which was a state-supported public school. The differences between that impact and the impact on the Wilson colony seem insignificant (or perhaps even more serious for the Wilson Colony), yet the results recognized Mr. Multani's rights but not those of the Brethren.

The Hutterian Brethren case seems to suggest that the Supreme Court is drawing back from the generosity of the earlier cases on religious rights and allowing government broader scope to enact legislative programs that will affect citizens' rights. In Multani, Charron J., writing for the majority, found a parallel between what was required to meet the requirement that the state action minimally impaired the right of the applicant and the concept, under human rights law, of reasonable accommodation up to the point of undue hardship. Thus, to show minimal impairment, the state was required to show that its objective could reasonably not be achieved if the freedom of the complainant was respected. The court in Hutterian Brethren confined this approach to the case of non-legislative state action or administrative practice.

In considering laws of general application, it held, the concept of reasonable accommodation was not applicable. Instead, the only test for minimal impairment is whether the legislative objective could have been accomplished in a "less infringing" manner. At this stage of the test, the court indicated it would consider only impact on the society as a whole. Individual burdens on religious practice are not to be considered until the final stage of the analysis in which the salutary effects of the law are to be balanced against its deleterious effects on the freedom of individuals. In that final analysis, the court found that the limits on religious freedom of the Hutterite colony were at the less significant end of the scale and did not outweigh the salutary effects of the law.

The more rigorous analysis of the Supreme Court in the Hutterian Brethren case of what is justifiable in a free and democratic society and its efforts to distance challenges to legislative programs based upon claims for freedom of conscience and religion from the language of accommodation have some attractions. But the Supreme Court's analysis also leaves out important factors. Indeed, it provides almost no guidance as to how it will consider the social impact of the legislation under the minimal impairment part of the test except to state that it is to be measured against the government's self-defined legislative objective. This appears to result in a very narrow and technical interpretation of minimal impairment.

If, as the court states, it is concerned to consider minimal impairment through the effects of the legislation on society, then the legislative impact upon free participation of persons with varying religious and conscientious beliefs in that society ought also to be taken into account. As well, when the court turns to the final step of balancing the salutary effects of the law against its negative impact, again, the negative effects on society from limiting the religious or conscientious rights of its members should be weighed in the balance along with the effects on these particular applicants.

If we apply these considerations to the Multani decision, the decision would not need to be justified as an example of a policy effectively foreclosing Mr. Multani's right to practice his faith, which, as I have pointed out, it did not in fact do. Rather, the effects on the public school system of a policy that would have effectively banned baptized Sikhs from its ranks and the consequent effect on the democratic process could have provided a powerful reason for permitting, with safeguards, his kirpan in the school. In Hutterian Brethren, the impact of the limitations on religious freedom of the proposed regulations on the democratic process is not perhaps as clear. However, consideration of these factors would have broadened the court's horizon and counteracted to some extent its ready acceptance of the government's own assessments. While I have argued that the language of equality and accommodation should not be central to an understanding of freedom of conscience and religion, the court's new approach has ignored any broader purposes for the freedom than self-actualization. As the decision stands, it appears to give much greater deference to government actions (at least when expressed in legislation or regulation) and much greater opportunity for governments to create a less open and participatory society than we have hitherto seen.

Conclusion

I have suggested in this review of the jurisprudence that while moral conflict is alive and well in Canada, courts are not using the tools at their disposal to handle the conflicts in a way that maximizes democratic processes in a pluralistic state. To improve this situation, courts must cease to be a reflection of those conflicts themselves and turn to overarching principles drawn from the Charter's own purposes to interpret freedom of conscience and religion not as a means of imposing one belief upon another, but as a means of preserving democratic debate and participation. I have tried to sketch, in this talk, some of the conclusions to which this process might lead and its impact upon the case law.

Yogi Berra is once supposed to have said: If you don't know where you're going, you had better be careful or you might wind up someplace else. The courts have had little thought when interpreting freedom of conscience and religion as to where the jurisprudence was going. Now that we can dimly perceive the outlines of the road ahead, I suggest it is time to reconsider the journey. Otherwise, while freedom of conscience and religion in the Charter provides something of a roadmap for preserving civil peace in Canada, we may find that its opportunities are wasted and we have, indeed, "wound up someplace else."

October 2009