St Alban’s (Grand Cayman) & St Mary’s (Cayman Brac)

Church & Office
– 461 Shedden Road
PO Box 719 GT, Grand Cayman, Cayman Islands
Tel – 949 2757 : Fax – 949 0619

email: rector@churchofenglandcayman.com

Timeline in Canada

 A digest by Rev N. Sykes of the paper entitled “Religious freedom, gay rights and human rights legislation” by Gwen Landolt.

Mrs. Landolt’s paper was delivered at “The Future of Freedom Conference” organised by the Canadian Constitution Foundation on October 13, 2007, and was updated on February 13, 2008. Mrs. Landolt is a lawyer and Vice President of the National Women’s organization REAL Women.

 

Canadian Charter of Rights and Freedoms promulgated in 1982.

 

Date

 

Process – towards same-sex marriage using equality provisions in S. 15

Action

 

 

Date

Process – curtailing religious freedoms in S.2

 

Action

1995

Supreme Court of Canada judgment in Egan v. Canada -   considering “sexual  orientation” to be analogous to the other protected groups of S. 15. (NB. Homosexual rights were deliberately excluded from the Charter in 1980-81 in a 22 to 2 vote by the Joint Committee of the Senate and House of Commons, which reviewed the Charter.)

Supreme Court “read-in” protection for homosexuals in S.15 of the Charter

 

1985 – soon after S. 15 came into effect

Supreme Court of Canada in R v Big M Drug Mart, held that non-religious individuals have a right to be free from religious observance.The Court emphasised the individual conscience and the rights of non-Christians at the expense of the religious rights of communities of believers.

Supreme Court decided that the Lord’s Day Act, which required the closing of businesses on Sunday, infringed on religious freedom. (Sunday shop closing did not require anyone to observe the Christian Sabbath as a holy day or adapt to Christian precepts, but merely restricted retail activity on that day.)

1998

Supreme Court of Canada decision in Vriend v. Alberta – a Christian College had dismissed an employee who was a homosexual activist.

Supreme Court held that “In order to achieve equality, the intrinsic worthiness and importance of every individual must be recognised, regardless of the age, sex, colour, origins, or other characteristics of the person …” The Court ordered the Alberta government to include sexual orientation (SO) in that province’s human rights legislation, even though that legislature had previously voted against such an inclusion.

 

1988

Court in Zylberberg v Sudbury Board of Education held that since only a Christian approach was used, this infringed on the religious freedom of religious minorities, and therefore was unacceptable.

Court eliminated Christian religious exercises and the Lord’s Prayer from the public shool system.

1999

Supreme Court of Canada decision in Law v. Canada (Minister of Employment and Immigration) – considered an individual or group’s human dignity to be undermined if they feel marginalised, effectively establishing a new criterion for the courts to use in determining “equality”. Equality rights under S. 15 now rest on the claims of a person’s feelings.

Court held that the purpose of the equality guarantee in S.15 of the Charter was “to prevent the violation of essential human dignity and freedom from the imposition of disadvantage, stereotyping or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.”

 

1990

Court in Canadian Civil Liberties v Ontario (Elgin County), along with the previous case (Zylberberg) eliminated the Christian character of education in public schools in Canada.

Court held that education including books, exercises and songs that emphasised the Christian faith offended the freedom of religion section of the Charter on the grounds that religious instruction was not educational, but for the purpose of indoctrination.

 1999

The Supreme Court of Canada in M. v. H [1999] did not take into account the intent or purpose of the FLA and its amendments, but was intent on providing rights for homosexuals. A dissenting judgment (Mr. Justice Gonthier) made the point that the purpose of the FLA was to address “the dynamic of dependence … particularly acute for women in opposite-sex relationships, who suffer from pre-existing economic disadvantage as compared with men…”

 

Groundbreaking decision: asserted the legitimacy and equality of same-sex relationships. Set stage for court decisions in favour of same-sex marriage.

The Court concluded that “spouse” under the Ontario Family Law Act (FLA) was a violation of S.15 of the Charter since it did not include same-sex partners. (The FLA specifically referred only to legally married and common-law heterosexsual couples.)

 

2002

The Ontario Divisional Court in Brillinger v. Brockie stated it would decide and be the final arbiter of what was a “reasonable” religious belief.

The Court held that although Mr. Brockie, a Christian printer, had a right to refuse to print homosexual material if it infringed on his basic religious beliefs, this religious belief was to be determined by a subjective test applied by the court. The Court decreed that Mr. Brockie’s refusal to print letterhead for a homosexual organization could not be construed as refusing to act  contrary to his religious beliefs, even though Mr. Brockie stated that this was the case.

 

 

 

 

2002

The Ontario Superior Court in Marc Hall v. Powers ignored the 1867 Constitution Act (S.93) and Charter (S. 29) guarantees that Catholic School boards have the right to establish their own beliefs and practices in their schools.

Mr. Justice McKinnon said that all the rights of Catholic schools in the country that existed in 1867 and S. 29 of the 1982 Charter must be looked at from the perspective of “2002 common sense”.

Mr. Justice McKinnon of the Ontario Superior Court placed an interlocutory injunction restraining the Catholic School Board from preventing this student from attending the prom with his male date, on the grounds that the Catholic School was fully funded by the Province, and was therefore subject to the “provisions of the Charter” to prohibit discrimination on the basis of sexual orientation.

 

 

 

 

2002

The Supreme Court of Canada in Chamberlain v. Surrey School Board “read-in” to the British Columbia School Act the words “tolerance” and “diversity” (which were not mentioned there at all), and claimed that this meant that the pro-homosexual material in the school curriculum was necessary to create “tolerance” and “diversity” in the B.C. school system. This “creative” and ideological (rather than based on any law) conclusion resulted in the overriding of the views of parents who held religious beliefs on the issue.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Human Rights Commissions

 

There seems little point to attempting a similar exercise for the confusing findings of these quasi-judicial bodies, but I will make some telling quotes by Mrs. Landolt.

 

 “As in the Charter, both federal and provincial human rights legislation also provide for freedom of religion and the protection on the grounds of sexual orientation. There is a difference, however, between the way in which the courts deal with the tension between these two provisions and the way the Human Rights Commissions deal with them. The difference is that the Commissions do not even pretend to balance these two rights, but, instead, happily come down in favour of homosexual rights in nearly all instances.”

 

Example: 2005 Knights of Columbus case in Coquitlam B.C.: a lesbian couple laid a complaint with the British Columbia Human Rights Commission claiming that the Knights of Columbus had discriminated against them when this group refused to rent them its hall for their wedding reception. The Commission did acknowledge that the Knights of Columbus had the right to exercise their freedom of religion by refusing the couple the use of their hall. Despite this, “the HRC ordered the knights of Columbus to pay a fine of $2000 for ‘hurting the feelings’ of the couple. This is a decision incomprehensible both in logic and common sense.”

 

Large volume of human rights decisions supporting homosexual rights over religious rights referred to, e.g.:

 

Mayor refusing to declare a Gay Pride Day

Marriage commissioners refusing to perform same-sex marriages

Christian teacher publishing letter in a local newspaper opposing homosexual material in the schools

Pastor Stephen Boisson published a letter opposing homosexuality in a local newspaper

Etc etc.

 

“One of the significant reasons why the rulings of the HRCs are so arbitrary and without legal and moral merit is due to the fact that they have been given such a wide latitude to carry out their mandate. There is no requirement that they apply the standard rules of evidence required by our courts in making their decisions. That is, their tribunals are not bound by the traditional legal standards of procedural fairness, such as the presumption of innocence, the rules of evidence and the rule of law. Without these safeguards, the Commissions are free to act on their own prejudices, instead of the principles of law.

 

Moreover, Commissions usually act as both judge and jury in most provinces in that they employ investigators to determine the facts of each case and then select the panellists for the Tribunal that will adjudicate these same facts. Further, the Commissions act on behalf of the complainant all during the complaint process. Those charged with human rights violations are not allowed the assumption of innocence, but are required to establish their innocence by paying for their own legal counsel, while the taxpayer underwrites all the legal costs of the complainant.

 

The public is not served by Human Rights Commissions, which are partisan and biased contradictions of the rule of law. Their decisions are confused and confusing and entirely arbitrary, based on nothing more than the personal whims and prejudices of the adjudicators. As a result, these tribunals are untrustworthy and unworthy of respect since they operate without regard to justice and the rule of the law.”

 

Mrs Landolt concludes her essay by pointing out that the secular values protecting homosexuals infringe on many citizens holding a religious belief. “This has occurred even though homosexual rights under the Charter sprang only from the minds of the judges of the Supreme Court of Canada who require that the law, culture and religion adapt to the demands of homosexual activists.”

 

 


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