Table Of ContentA BURL ON THE LIVING TREE: FREEDOM OF
CONSCIENCE IN SECTION 2(A) OF THE CANADIAN
CHARTER OF RIGHTS AND FREEDOMS
By
Richard A. Haigh
A thesis submitted in conformity with the requirements
for the degree of Doctor of Juridical Science
Faculty of Law
University of Toronto
© Copyright by Richard A. Haigh, 2012
A Burl on the Living Tree: Freedom of Conscience in Section
2(a) of the Canadian Charter of Rights and Freedoms
Richard A. Haigh
Doctor of Juridical Science
Faculty of Law
University of Toronto
2012
ABSTRACT
The Charter grants to everyone, in s.2(a), the “fundamental …freedom of conscience and
religion.” Yet the interaction between the two operative terms, “religion” and “conscience”
remains largely unexplored. What, for example, is meant by “conscience”? By conscience in
contradistinction to religion? Does s. 2(a) make a distinction between the state’s respect for
religion and that of conscience? Can freedom of conscience be elevated to a freestanding
right? Can conduct motivated by conscience be exempted from general laws in the way that
some religious conduct has? Should the state take action to ensure conscience is protected?
After more than 25 years of Charter commentary and jurisprudence, these remain deep
questions, only partially answered.
This project considers the possibility of building a case for an independent and robust
“conscience” branch of s. 2(a), which will protect a broader range of freedoms, at the same
time as allowing other disputes to be cast in more neutral tones (by taking them out of
religious-based language, where possible) and allowing still others more room to develop in a
more analytical and principled basis (as purely “religious” disputes more commonly
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associated with religious norms). In my view, there is, despite some opposition, sufficient
justification in history, theory and doctrine to establish a separate and independent concept of
freedom of conscience. At the same time, freedom of religion will always remain relevant as
an acknowledgement of the distinct communal aspects of religion. Thus, a broad approach to
freedom of conscience could include individual religious claims where the religious belief is
based on a matter of conscience, and those conscience-based claims that lack a communal
dimension, such as the prisoner who cannot eat meat or the whistleblower who feels
compelled to report a supervisor.
By exploring the origins of conscience and religious freedom, the basis behind the inclusion of
conscience in many human rights documents, and the need for a theory that encompasses both
as equal and complementary aspects of liberty, the dissertation sets out some possible ways in
which freedom of conscience could be invoked and present a potential framework for
assessing constitutional freedom of conscience claims.
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Acknowledgments
No project like this is ever done without the help of many others. I am greatly indebted to my
supervisor, Professor (as he was at the start) and now Dean Lorne Sossin, who seems to be
able to accomplish inhuman amounts of work whilst always maintaining an amazingly upbeat
and humorous equanimity; my Committee members, Jennifer Nedelsky and Bruce Ryder (who
is also a great colleague) for their enduring wisdom and helpful advice; and the examining
committee members Ian Lee and Richard Moon, Richard in particular who provided a very
detailed critique that I know will be extremely useful as this project goes forward.
I also had the assistance of a number of friends through the course of this doctorate: Neil
Foley, who provided research assistance for me as a faculty member prior to embarking on
this doctorate; Jesse Rosenberg, who first mooted the idea of an expanded freedom of
conscience with me; and Barry Bussey – a former student of mine and doctoral candidate at
Osgoode – gave me some excellent feedback, and information on conscientious objectors.
Four students from my 2008/09 State and Citizen class were instrumental in enabling me to
get things done: Christine Hakim, who translated a very difficult French article for me; Daniel
del Gobbo, who also developed an interest in conscience and shared his thoughts with me;
Ryan Edmonds, who always seemed to have my project in mind, by sending me news clips
and interesting cases, without favour or reward; and Adrienne Ng, whose sound advice,
support and assistance – despite being sent on a few wild goose chases that led to nothing –
cannot adequately be put in words. As well, Ladan Mehranvar and Mai Taha – colleagues in
the doctoral program at the U of T, provided interesting discussions and help with SSHRC
applications. Howie Kislowicz, another colleague in the doctoral program and a co-instructor
with me in a Constitutional law course, was always on the lookout for material for me, and
was a great sounding board for some theories about religion and conscience. Rivka Birkan,
another former student, read a near-final version and made some very helpful comments.
Finally, a special recognition should go to some of my longest standing friends: the “Breakfast
Club” of Roger Beattie, Ted Fujisawa, Craig Middaugh and Rod Northey – who never fail to
share their invaluable opinions with me; Brett Christen and Angela Rae, who loaned me their
house at “Frog Pond” for a week of writing; Curtis Gillespie, who gave me a writer’s and
layperson’s careful eye and wise comments; Denise Oliver, who kept her eyes open for new
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cases on conscience; Michael J. Sobkin, whose clarity of thought is often unmatched; Arthur
Wilson, whose persistence can be infectious; Allison Thornton, who kept me honest in
working through practical and strategic matters related to constitutional claims; and Ken
Jepson, whose careful reading and editing deserves more than the one or two dinners that I
was able to provide.
As well, there are the many librarians, researchers and institutional staff who make the life of a
doctoral student palatable. Stéphan Bergevin and Patricia Stanton, registrar and court records
officers at the Supreme Court of Canada, helped me through the complexities of reviewing old
Supreme Court records; Alicia Loo, the Chief of Information and Reader Services at Supreme
Court of Canada library, for arranging and setting up my regular visits; Martin Ruddy,
Orientation Services at the Library and Archives of Canada, who helped me navigate the
difficult corridors of information related to the Special Joint Committee of 1980; Daniel Perlin
at Osgoode Hall library, who always seemed to go beyond what anyone could expect to find
obscure UN documents and debates, Saskatchewan Hansard records that were not available in
Ontario, etc. (and his colleagues who he contacted on my behalf: Greg Wurzer, the Reference
Librarian at the University of Saskatchewan law library, and Grant Kayler, the Acting Head
Librarian, University of Alberta.)
Other professional contacts were selfless in assisting me. Gregory Senda, counsel for the
Wilson Bretheren in the Alberta v. Hutterian Bretheren of Wilson Colony case, provided me
with the full record of the SCC proceeding in that case; and Dr. Kent Donleavy, professor of
Education at the University of Calgary, who has a passion for conscience that is unbounded,
provided me with invaluable references and bibliographic material and many hours of
interesting discussions. And another University of Calgary faculty member, Peter Bowal, who
co-authored an article on whistleblowers with me, helped refine some of my thinking.
I am lucky to be associated with a great law school and great faculty and staff. All of them
have been very supportive over the years. Four faculty should be singled out, for being a huge
help: Craig Scott, who gave me invaluable advice on international human rights documents;
Peer Zumbansen, who helped with the German jurisprudence on conscience and religion (and
put me in touch with Russell Miller, who deserves particular mention for lending me drafts of
an unpublished new edition of Kommers Constitutional law text); Francois Tanguay-Renaud
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for his advice on Joseph Raz, and Patrick Monahan, who, as Dean of Osgoode, was always
willing to offer his unconditional support for my unconventional career at Osgoode Hall Law
School. On the administrative side, Lynne Fonseca and Maria Abballe have been the best
administrative assistants anyone could ask for.
Finally, I cannot thank enough the two most important women in my life, without whom this
doctorate would not exist, nor would I be the person I am. My mother, Shirley Haigh, who
actually read a draft of it all and gave her invaluable comments, despite worrying that she
knows nothing of the subject. And Charlotte Davis, my partner, best friend, my most cherished
editor, and best thing that ever happened to me. She has shaped my own conscience more than
she will ever know. And, she’s had to put up with me every day for the past 27 years. For that,
she deserves her own doctorate.
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Table of Contents
Title Page No.
Abstract ii
Acknowledgments iv
Table of Contents vii
Chapter 1: Introduction 1
Belief and Intolerance in the Ascendant 3
Religion in the Constitution: Defining Belief in Canada 7
Legal Religious Freedom: Toward Individual Autonomy 11
Envisioning an Independent Role for Conscience 12
Chapter 2: Freedom of Conscience, Freedom of Religion:
The Twin Sparks of Celestial Fire 19
1. The Meaning of Conscience: A Distinct Concept 20
2. Subsumed and Distinct Conscience: An Introduction 28
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Chapter 3: Conscience in Legal Doctrine: Unformed Burls Outside Canada 44
1. Introduction 44
2. Category 1: Undifferentiated Conscience 48
2.1 Debates Over the First Amendment 48
2.2 International Rights Documents 52
3. Category 2: Religion and Conscience As Distinct 63
2.1 Conscience in Debate: U.S. and International Documents 63
2.2 Conscience in Cases: U.S. and European Judicial Decisions 69
Chapter 4: Conscience in Canadian Law: The Burl on the Living Tree 90
1. Undifferentiated Conscience in Canadian Law 92
1.1 The Absence of “Conscience” Simpliciter 92
1.2 The Omission of Debate About “Conscience” 95
1.3 Undifferentiated Conscience in Jurisprudence 101
2. Distinct Conscience in Canada: The Burl Revealed 110
2.1 Debates and the Text of the Charter 113
2.2 Distinct Conscience in Charter Cases: A Quixotic Journey 117
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3. Conclusion 137
Chapter 5: The Problems and Limitations of Freedom of Religion 139
1. Conscience and Religion: Interpreting the Constitution 140
2. Understanding Religious Freedom: Problems of Comprehension 145
2.1 Difficulties in Defining 146
2.2 Difficulties in Understanding History 154
2.3 Difficulties of Judicial Interpretation 159
2.4 Modern Freedom of Religion: the Inevitability of Conscience
171
3. Understanding Religious Freedom: Protecting Community 180
4. Conclusion 189
Chapter 6: The Benefits of Freedom of Conscience 191
1. A More Universal Freedom than Religion 192
2. Conscience is More Suited to Individual Freedoms 209
3. Conscience Fosters a Plurality of Beliefs 217
4. A More Coherent Freedom 222
5. Conscience Captures a Wider Array of Claims 233
Chapter 7: Conscience in Legal Doctrine: An Approach to s. 2(a) 236
1. Four Important Factors in Conscience-Based Claims 236
1.1 Conscience is an Individual Shield or Sword 236
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1.2 Some Connection to Morality 241
1.3 Compellable Practice 247
1.4 Floodgates and Fraudulent Claims 251
1.5 Summary 257
2. The Test for Conscience 260
2.1 Applying the Test: Two Hypotheticals 262
Chapter 8: Conclusion 271
Bibliography 277
Books and Monographs 277
Cases 291
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