Freedom of Religion and Conscience Act proposed for Canada

By Jim Coggins

A CANADIAN activist has proposed a Freedom of Religion and Conscience Act for Canada modeled on one proposed in South Africa.

Iain Benson, executive director of the Ottawa-based Centre for Cultural Renewal, says he is calling for a "paradigm shift" that would "include" religion in public discourse rather than "exclude" it.

South African experience

About three or four years ago, Benson, a recognized constitutional expert who has earned law degrees in both Canada and the United Kingdom, was invited to consult with Christian leaders in South Africa.

South Africa's constitution, which came into force in 1996, is modeled in part on Canada's Charter of Rights and Freedoms. However, Christian leaders in South Africa were also aware of some of the controversial ways in which Canada's Charter has been used to limit religious rights. Benson was invited to help prevent some of the same problems from arising in South Africa.

Section 234 of the South African constitution -- a section not in the Canadian constitution -- allows for the addition of further charters clarifying certain rights and freedoms. These charters would guide politicians and courts in interpreting the constitution.

Chapter 9 of the South African constitution sets up a number of permanent independent constitutional commissions to offer advice to the South African government. One of these is a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

The group of Christian leaders who consulted Benson drew up a four-page Charter of Religious Rights and Freedoms for submission to this Commission.

The document outlines general religious rights, but also includes a number of quite specific clauses which could be relevant to the Canadian situation.

The group drafting the Charter soon realized that in order to have the Charter accepted, it would be necessary to have broader support. Feedback was sought from Protestant, Catholic, Anglican, Orthodox, Moldavian, Reformed and Zion Christian churches -- an African independent denomination and the largest Christian denomination in South Africa. The group also sought feedback from representatives of Judaism, Islam, Hinduism, Mormonism and African Customary Religions.

At an all-day meeting, the charter was scrutinized and amended by 50 representatives of these various religions and unanimously endorsed. After some further tweaking, it will be forwarded to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

There is no guarantee that the Charter will be accepted by the Commission or the South African government, especially without significant amendments, but a document endorsed unanimously by such a broad base of religions is "going to be pretty hard to reject," said Benson.

Canadian application

Drawing on his South African experience, Benson is advocating that a Charter similar to the one proposed in South Africa be drafted in Canada.

Benson developed this idea in a 41-page study paper written for the Policy Research Initiative (PRI), a government-funded think tank designed to offer advice to the Canadian government on "medium-term" policies.

Benson's paper, calls for "a paradigm shift."

In his paper, 'Taking a Fresh Look at Religion and Public Policy in Canada,' Benson argues that a mistaken understanding of "secularism" and the "separation of church and state" has given atheism a monopoly and excluded religion from public discussion, and he calls for a "paradigm shift" that would recognize atheism as a "belief" and allow religion back into public life.

In his paper, Benson outlines several implications of this, including:

  1. Issues involving rights and freedoms should be decided through a constitutional forum, which would hear all sides and reach a compromise, rather than through law courts, which tend to create "winners and losers" and look at individual cases rather than the broader context. The Court Challenges Program, which gives an unfair advantage to those challenging current laws, would have to be revamped.
  2. Religious charitable organizations would have the same rights as secular charitable organizations to engage in political issues without losing their charitable status.
  3. Religious communities should be given more prominence in government departments such as Multiculturalism and Health.
  4. Public events could include "a period of silence" or silent prayer to recognize "transcendance" without enforcing one religious view.
Religion would thus be allowed to cooperate with government for the public good.

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Benson said he would like to see the Canadian government and people follow the lead of South Africa. In the light of rising crime and social chaos, "It is generally understood now in South Africa that religions are very importantly positioned to keep the culture together. Governments alone can't change the hearts and minds of people and how they act."

A Long Way to Go

Benson's proposal is still a long way from reality. There is no telling what the PRI will choose to do with it, and it may not even have been seen by any politicians yet. Yet it is one of two papers on the topic selected for further study by the PRI.

Don Hutchinson, general legal counsel for the Evangelical Fellowship of Canada (EFC), told CC.com that Benson is "a great thinker" whose proposal "could prove very helpful." However, he cautioned that there is no provision in the Canadian constitution for such a Charter, as there is in the South African constitution.

Hutchinson also cautioned that the Canadian experience with the Charter of Rights and Freedoms suggests that any written Charter can be reinterpreted in ways that limit religious rights rather than enhance them.

Still, he said he agreed that a new paradigm is necessary and that a new Charter could be helpful. However, it would have to be developed by a broad spectrum of the Canadian religious community, as occurred in South Africa, rather than by a lone thinker such as Benson. The Declaration on Marriage, drafted by the EFC and endorsed in 2006 by a broad range of Canadian religious leaders, shows that joint action is possible, said Hutchinson.

Hutchinson also stressed that Benson's general approach -- that a "secular" society should include not exclude religious belief -- has already been recognized by the Supreme Court of Canada in the Chamberlain v. Surrey School District No. 36 decision. Hutchinson said that the implications of that decision "are not even understood well enough to be poorly understood." Lobby groups and human rights commissions are still often fighting a propaganda battle to exclude the religious voice, but Hutchinson suggested that "they are going to have to move back in the next five to ten years or there will be an outcry from the general population."

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How a Charter of Religious Rights might relate to Canadian issues

  1. The proposed South African Charter of Religious Rights and Freedoms declares that "Every person has the right to have their religious beliefs reasonably accommodated." This is particularly relevant to Canada, as the Taylor-Bouchard Commission in Quebec is currently studying the limits on "reasonable accommodation."
  2. The Charter states, "Every person may . . . refuse to participate . . . in certain activities, such as of a military or educational nature, or receive certain medical treatment, or perform certain duties or deliver certain services, including medical services." In Canada, this might apply to Jehovah's Witnesses who refuse blood transfusions, Christian nurses who refuse to participate in abortions or Christian marriage commissioners who refuse to officiate at same-sex weddings.
  3. The Charter states that "Every person has the right to make public statements and participate in public debate on religious grounds." In Canada, this might apply to the case of BC school teacher Chris Kempling who was disciplined by the BC College of Teachers and suspended from teaching for four months for speaking about homosexuality from the perspective of his Christian faith.
  4. The Charter states that "Every person has the right to educate their children, or have them educated, in accordance with their religious or philosophical convictions . . . Parents may withdraw their children from school activities or programs inconsistent with their religious convictions." In British Columbia, this might apply to parents wishing to withdraw their children from parts of the compulsory curriculum devised by homosexual activists Peter and Murray Corren.
  5. The Charter states that "Every religious institution has the jurisdictional independence to determine its own confessions, doctrines and ordinances . . . including . . . conditions of employment." In Canada, this could allow religious institutions to exclude homosexuals or women from certain leadership positions.
  6. The Charter states "Every person has the right on religious or other grounds . . . to conduct relief, upliftment, social justice, developmental, charity and welfare work in the community." This might apply to the case of Tenth Avenue Church in Vancouver, which was told it needed a social services permit for its food bank and homeless shelter program on the grounds that such work was not inherently connected to the practice of its religion.

April 18/2008