Religious Freedom: A Frozen Concept or A Living Tree?

Our Constitution has been described by the Supreme Court of Canada as a “living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”[1] According to the Court, the terms of our Constitution are not “frozen,” but adaptable. For that reason, the word “marriage” in our Constitution 1867 was not “frozen” to the old view of one man and one woman, but is subject to change by government to reflect new realities.

In October 2014, lawyers in British Columbia voted against the accreditation of a law school at Trinity Western University (TWU).[2] I suggest that the vote was against the Supreme Court of Canada’s 2001 definition of religious freedom, which has allowed TWU to require its students to abide by its religious teaching on sexual relations.[3] In that case the Court said:

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence. It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply. To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.[4]

It appears that lawyers in B.C. consider 13 years to be long enough for such a definition of religious freedom to be “frozen.” As Bob Dylan sang, “The times they are a-changin.’”

Across this nation the legal community is strident in its demand that the law on religious freedom change. Though “religious freedom” is a Constitutional term, these lawyers claim it must be like a living tree and accommodate “the realities of modern life.” No longer can it be said that “TWU is not for everybody”—that is discrimination. They demand an interpretation that forces religious communities to be non-exclusionary.

We now find ourselves at a unique crossroads. On the one hand, we have a Supreme Court of Canada Constitutional definition of “religious freedom” that has allowed TWU to operate with its religious beliefs and practises but is seen as a “frozen” concept. On the other hand, we have a demand from an increasing number of lawyers who are openly challenging the Supreme Court and demanding that its definition be changed, using the metaphor of the living tree.

It should be pointed out that these metaphors are problematic. First, they are biased. The term “frozen” has a negative connotation. Rarely would people agree that “frozen” is a good thing (unless we are talking about ice cream or a popular Disney film). It conjures up associations of “death,” “cold,” and “misery.” It is like Narnia—“always winter, never Christmas.” However, the term “living tree” is positive—it paints a picture of a growing organism that gives us beauty and shade in the spring and summer. Though both are terms used by the Court, they nevertheless carry a bias: “frozen” is wrong; “living tree” is right.

Second, it is simply wrong to use the “living tree” metaphor to justify any Constitutional interpretation without restriction. Just as we cut back trees that grow too close to electrical wires, so we must prevent the logic of a “living tree” from permitting unruly Constitutional interpretation. For example, if Canada were to go to war with Syria, would we agree that such “modern realities” justified a constitutional interpretation that put all Syrians living in Canada and their descendants in internment camps? Surely that would be too far.

When we look into the origin of the “living tree” metaphor, we discover that it comes from Lord Sankey’s comments in a 1930 decision of the British House of Lords. Sankey described our Constitution as “a living tree capable of growth and expansion within its natural limits.”[5] In other words, the metaphor is not endless—it must be “within its natural limits.” I suggest that the current thought in the legal community that would require the Supreme Court of Canada overturn its 2001 decision would not be in keeping within the natural limits of religious freedom. The “living tree” that would deny autonomy to a religious community in determining its own identity and understanding of truth needs its “branches” trimmed—it has reached too far; it is not in keeping with Canada’s historical, legal, and cultural history of accepting difference.

Canada has a long and vibrant history of religious freedom. The 1760 British Crown granted religious freedom to the Roman Catholic population of Quebec and was affirmed in the formation of Upper and Lower Canada in the mid-1800’s. Its influence was felt in the Constitution Act 1867[6] where the rights of Roman Catholic and Protestant schools were protected.

In 1872, Canada promised the Mennonites religious freedom and the right not to bear arms in times of war if they agreed to settle the west.[7] When war came during the 20th Century, Canada was true to its promises and did not conscript the young men in the Mennonite community. On June 18, 1940, Prime Minister Mackenzie King rose in the House of Commons and declared:

I wish solemnly to assure the House and the country that the government has no desire and no intention to disturb the existing rights of exemption from the bearing of arms which are enjoyed by the members of certain religious groups in Canada, as for instance the Mennonites. We are determined to respect these rights to the full.[8]

In other words, Canada’s history shows that when it came to the promise of religious freedom, it was “promise made, promise kept.”

When the country went through the “marriage debate” ten years ago, our Parliament promised that religious groups would be entitled to hold and declare religious beliefs on marriage and that it would not be against the public interest to hold and express diverse views on marriage.[9] Those promises have had a long pedigree. Religious communities have always been able to rely on the solid word of the state’s protection, in Canada, against intrusive force of conformity to the majority opinion.  Will that continue to be the default position of religious communities or must we now be wary of such promises?

Constitutional interpretation of religious freedom is neither frozen nor to be an unruly living tree. Instead it is embedded within a historical, legal and cultural framework that respects difference in belief and practise.

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[1] Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, at para. 22.

[2] http://www.lawsociety.bc.ca/page.cfm?cid=3995&t=Referendum-results-–-BC-Lawyers-say-TWU-should-not-be-an-approved-school-of-law

[3] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772.

[4] Trinity Western University v. College of Teachers, at para. 25.

[5] Edwards v. Attorney General of Canada [[1930] A.C. 124 at p. 136.

[6] Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)

[7] In 1872, an Order in Council provided the Mennonites in Russia the following promise: “The Hon. The Minister of Agriculture to whom the above Despatch & enclosures were referred, reports that it is expedient to give the German Menonites (sic) in Russia the fullest assurances of absolute immunity from Military Service, if they settle in Canada”. Order-in-Council Number 1872-1043 B. Approved Date: 1872/09/25. Reference: RG2, Privy Council Office, Series A-1-a, Volume 300, Reel C-3301.

[8] Rt. Hon. Mackenzie King, June 18, 1940, House of Commons Debates, 18^th Parliament, 6^th Session: Vol. 1, p. 904.

[9] Civil Marriage Act, S.C. 2005, c. 33 at preamble, ss. 3, 3.1.