University of Alberta Faculty of Law Blog

Worst Dinner Party Ever: Religion and Politics Edition

Dear Sir or Madam,
It has often been said that politics and religion make for poor dinner conversation.  If you are eating, we will wait for you to finish.  Done?  Good.

As we have already demonstrated, statute is often incomplete.  For example, s. 2(a) of the Charter reads:

“2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;...¹”

Of course, nothing is as easy or simple as it seems with constitutional law, and there have been various calls to interpret these eleven little words.  Section 2(a) rights can be somewhat troublesome when considering that accommodating them without any restrictions whatsoever can have some unintended consequences, such as denying others their Charter rights, which sometimes includes their s. 2(a) rights.

In 2005, Bobby Henderson wrote an open letter to the Kansas School Board admonishing their decision to teach "Intelligent Design" alongside the theory of evolution in their classrooms².  Henderson suggested that this would mean that the Board would need to teach more than only their version of "Intelligent Design", including the one that he fabricated for the purpose of the letter, which suggests that the universe was created by a Flying Spaghetti Monster.  He also suggested that, in order to teach his theory with full respect to his religion, it must be done in a pirate costume.  At first blush, Bobby Henderson seems like a madman.  In reality, he is a hero.  His letter used humour to make a very important point in the American debate regarding the establishment of religion and its place in public schools.

Since we aren't American, let's fast-forward to 2014 when a B.C. man named Obi Canuel lost his driver's licence for refusing to take a photo without wearing a colander on his head.  You see, Canuel considers himself a devout "Pastafarian", which is what adherents of the Flying Spaghetti Monster call themselves.  In addition to swashbuckling accessories, they also view anything pasta-related, such as a strainer, to be sacrosanct.  The Insurance Company of British Columbia (ICBC) refused to permit him to take the photo with the colander.  According to the Vancouver Sun, “ICBC refused to allow an interview... and has shrouded its religious policies in secrecy”³.

But... But... But... What about Section 2(a)?  

Exactly.

As you've probably guessed by now, s. 2(a) rights aren't absolute.  The best ruling that we've had to sort this out is Syndicat Northcrest v Amselem⁴.  In this case, Orthodox Jews built small dwellings on their apartment balconies as part of their observance of Succot, a Jewish holiday.  The owners of the building didn't like it, and sought an injunction.

Now, this case doesn't really deal with the Charter directly, but with the Quebec Charter.  The important part of the Supreme Court of Canada's ruling deals with freedom of religion as a whole.  It provides a definition for “religion”⁵ and, more importantly, both a requirement and a test for a sincerely held religious belief⁶.  Amselem held that an individual belief is able to be protected, provided that it is made in good faith, and that violations would be assessed on their gravity, compared with that of competing interests, such as the rights of property owners to not have temporary structures erected on the balconies of their building.  Finally, the Court asserted that freedom of religion is to be used as a shield, and not a sword.  It is not to be used to deny the rights of others⁷.

If this ruling has left you more confused instead of less, it's because you've been paying attention.  Amselem, while providing a framework to assess how our s. 2(a) rights should be weighed, ultimately leaves us with some very important questions:

How do we deal with parody religions such as the Church of the Flying Spaghetti Monster, especially when they are making such an important point regarding the place of religion itself in our society?

How do we recognize the rights of the non-religious, who have been and continue to be systemically discriminated against? (Note that the “God keep our land” line is still a part of "O' Canada", despite the recent edits, and that the preamble to the Constitution Act, 1982 reads, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”⁸.)

With Canada's diversity continuing to grow, how do we weigh the rights of competing religions with beliefs that are diametrically opposed to each other?

Sadly, this is going to be one of those posts with more questions than answers.  It is our sincere hope that it will encourage people to both pay attention to this emerging issue, as well as to make their voices heard.

 

RAmen,
The Dominion

 

¹ Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
² Bobby Henderson, “Open Letter to Kansas School Board”, online <www.venganza.org/about/open-letter/>.
³ Matthew Robinson, “ICBC rules for religious headgear remain shrouded in mystery”, Vancouver Sun (5 March 2015), online: <http://www.vancouversun.com/life/ICBC+rules+religious+headgear+remain+shrouded+mystery+with+video/10849851/story.html>.
⁴ [2004] 2 SCR 551 [Amselem].
⁵ Ibid at para 39.   
⁶ Ibid at para 52.
⁷ Ibid at para 62.
⁸ Supra note 1.

Freedom of Expression: From the BNA Act to the Westboro Baptist Church

Dear Sir or Madam,

In our last post we introduced the Canadian Charter of Rights and Freedoms, which, along with the BNA Act, makes up the bulk of our written constitution. Though implied constitutional rights existed before the Charter, it explicitly set out for the first time Canada’s guaranteed constitutional rights and freedoms.[1] This was a major shift from the BNA Act’s approach, which was silent on individual rights.[2]

Each day this week we’ll look at some individual rights and freedoms. Today, we begin the freedom that Chief Justice McLachlin described as “the indispensable condition of nearly every other freedom”,[3] section 2(b), the freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication (such as online social media).

Courts have consistently characterized freedom of expression as essential in a free and democratic society.[4] The provision is also worded broadly to protect any activity intended to convey meaning.  Anything from a political satire to parking your car in a particular spot can be an activity that conveys meaning and is protected under s. 2(b).

Where did this freedom come from you ask? In 1938 the Supreme Court of Canada established that “the right of public discussion… existed at the time of the enactment of The British North America Act.”[5] Even before the charter guaranteed freedom of expression, the BNA Act’s declaration that it was a Constitution similar in principle to that of the United Kingdom implicitly protected freedom of expression.

Freedom of expression is not usually controversial in and of itself and individuals rarely need protection when their views are widely held in society. It is when expression becomes a nuisance in the street or radically offensive to others that citizens pressure governments to stifle unpopular perspectives. The question then becomes, what expression can the state reasonably limit under s. 1?

The Supreme Court has determined that violent expression and threats of violence are not protected under s. 2 (b).[6] The line becomes harder to draw when free expression may put other fundamental values at risk. Certain expressions may incite violence, undermine fundamental governmental institutions, or undercut racial and social harmony.[7]  While Canada does not protect certain forms of hate speech, other countries like the United States have taken a different approach.

In R v Keegstra, the Supreme Court grappled with the limits of protecting hate speech.[8] James Keegstra was a high school teacher in Alberta who expressed hateful anti-Semitic comments in his classroom. During classes, he describes Jews as "sadistic", "money-loving" "child killers" who had "created the Holocaust to gain sympathy." He was prosecuted under s. 319(2) of the Criminal Code of Canada, which prohibits publicly and willfully promoting hatred.

The Supreme Court of Canada determined that even though the legislation infringed Mr. Keegstra’s freedom of expression, it was a reasonable and justifiable limitation in a free and democratic society in order to protect target groups from hate propaganda.

In contrast the United States has traditionally protected hate speech beyond Canada’s reasonable limit.

In a recent US case, Snyder v. Phelps, the United States supreme court upheld hate speech protection for members of the Westboro Baptist Church.[9] Members of the church regularly picketed military funerals to communicate its belief that God hates the United States for tolerating homosexuality, particularly in America’s military. In this case, they picketed the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty.

Ultimately the court concluded “Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

What are your thoughts on Canada’s limitation of expression compared with that of the US? Leave us a comment below!

Respectfully submitted,

The Dominion

 

*Special thanks to Professor Eric Adams and the Centre for Constitutional Studies for the informative recent Downtown Charter Series presentation on s. 2(b): What Expression does the Charter Protect?

 

[1] Kent Roach & David Schneiderman, “Freedom of Expression in Canada” (2013) 61 SCLR (2d) 429 at 431-32.

[2] Ibid at 431.

[3] R v Sharpe,  [2001] 1 SCR 45, 194 DLR (4th) 1 at para 23.

[4] Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1336.

[5] Reference Re Alberta Statutes - The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] SCR 100.

[6] R v Khawaja, 2012 SCC 69, [2012] 3 SCR 555.

[7] Ibid. 

[8] [1990] 3 SCR 697, [1991] 2 WWR 1.

[9] 562 US 443 (2011), 131 S Ct 1207.

Convenient Conventions: Underlying Rules of Constitutional Interpretation

Dearest Reader,

The BNA Act is comprised  of “black-letter law” (the actual words on the page that prescribe the law) and unwritten principles or customs that supplement the black-letter law.¹ Today’s post reviews the unwritten constitutional conventions that are not technically laws but are mandatory.² These conventions assist the courts in applying the Living Tree Doctrine.

Courts use conventions to interpret laws in keeping with judicial history and the rule of law.³ With the except of Quebec’s civil system, Canada’s common law system is based on the United Kingdom’s, where current judicial decisions look to precedent cases to determine the appropriate application of the law. Commonly used principles of statutory interpretation guide judges to interpret legislation in similar manners as their colleagues and predecessors. This allows the justice system to be somewhat predictable.

Conventions are unwritten principles that guide courts in deciding how to best approach a constitutional question. They are considered part of the subtext of the constitution, similar to the Preamble of any legislation. Neither are actual laws, but give courts context to respond to constitutional questions. Conventions form when a typical custom becomes hardened into a formal practice.⁴ Political conversation, negotiation, and past governmental practice often shape conventions.

Legislation is often written in broad terms to allow courts some flexibility in applying laws.Canada’s constitutional law tends to be written in “broad, vague language that rarely speaks definitively to the cases that come before the courts.⁵ Conventions can assist courts in narrowing a question that arises from a broad law. Alternately, legislation can be written more specifically to ensure a narrow interpretation and application. In such a case, conventions provide  courts with the ability to interpret a law with more flexibility, if necessary.

Many of the BNA Act provisions work in harmony to demonstrate underlying conventions. Early conventions guided the constitution and they continue to guide constitutional interpretation. Here are some important examples:

Constitutional Continuity: the idea that we maintain many of the same constitutional practices that the government of Canada was founded upon, as a former colony of Britain.

• Preamble: “a Constitution similar in Principle to that of the United Kingdom”⁶
• S. 9: the authority of and over Canada continues and is vested in the Queen
• S. 11: establishment of the Queen’s Privy Council, similar to that of the UK
• S. 12: English law continues until it is abolished by Canadian law
• S. 55: the Queen must give approval to all Orders in Council (a.k.a. laws)

Federalism: provinces have authority over some activities (s. 92) but the federal government reserves residual power (s. 91).

• Preamble: respects the provinces’ authority because the four provinces desired to unite to create the federal government
• S. 22: respects regional interests in the federal government senate appointments
• Ss. 91 & 92: enumerated powers of federal and provincial governments
• S. 93: gives the provinces large power over education
• S. 94: assumes that the common law provinces would want to pass uniform laws while Quebec maintains its civil law system
• S. 95: provinces cannot enact laws relating to agriculture and immigration that are repugnant to any federal act

Democracy: the Constitution aims for a free and fair society led by a government responsible to its citizens

• Preamble: “responsible government” requires a majority of the House of Commons to pass laws
• S. 36: a clear majority (50% + 1 vote) rules in the Senate
• S. 37: representation of the Members of Parliament is based on population
• S. 40: regional distribution of electoral districts
• S. 50: each session of parliament can sit for no longer than 5 years
• S. 53: bills relating to appropriation of funds and tax impositions must originate in the House of Commons (not the unelected Senate)

Rights protected by the Constitution

• S. 92(13): property and civil rights
• S. 93(2) minority religious education rights
• S. 133: language rights of both official languages

In Re: Resolution to Amend the Constitution, the Supreme Court of Canada officially determined that conventions are appropriate principles to consider when deciding a question of constitutional law.⁷ The Court considered whether the federal government can amend the Constitution without provincial approval. The federal government could not unilaterally amend the Constitution due to an underlying constitutional convention of “substantial” provincial concurrence that the federal had established in political negotiations.⁸ To determine “substantial” provincial concurrence, the Court relied on past government decisions that required “substantial provincial support” as well as international examples from other Commonwealth countries that did not require unanimity from its provinces.⁹ Ultimately, the Court determined “that it could properly recognize conventional rules … notwithstanding their political aspects”.¹⁰

Importantly, the Court noted that although conventions are appropriate to help determine questions of law and interpretation of constitutional questions, they cannot be enforced by the court in the same way courts can enforce laws.¹¹ Some conventions are in direct conflict with black-letter laws. For example, the BNA Act required the Governor General to give assent to every Order in Council passed by Parliament but convention and political custom limits the Governor General’s power.¹²

 The Patriation Reference case is one of the major Supreme Court decisions that ruled on the use of conventions in constitutional law. There are many more (constitutional law demi-god Peter Hogg reviewed about 65 in 1997¹³). Tomorrow we’ll review a few of the heavy-hitters.

With our most sincere regards,

The Dominion

 

1 Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.

2 However, “it is generally accepted that the penalty for breaching a constitutional convention is political, not legal” Ibid at 1.

3 Re: Resolution to amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

4 Ibid at 883.

5 Peter Hogg & Allison Bushnell, “The Charter Dialogue between courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing after All)”, Osgoode Hall Law Journal 35.1 (1997): 75-124, online: <http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2> at 77.

6 Constitution Act, 1867, Preamble at para 1.

7 Ibid.

8 Ibid at 902; Hurtubise-Loranger, supra note 1 at 1.

9 Ibid at 902.

10 Hurtubise-Loranger, supra note 1 at 1.

11 Ibid.

12 Ibid at 2.

13 Hogg, supra note 5.

Interview with the Rt. Hon. Kim Campbell

Click here for Ms. Suffragette's interview with former Prime Minister of Canada, the Right Honourable Kim Campbell, P.C., C.C., O.B.C., Q.C., or simply press play on the video below. 

 

We hope that you enjoy this entertaining and informative interview with Ms. Campbell as much as we did filming it! Ms. Suffragette caught up with Ms. Campbell at her office at the University of Alberta, where she heads the Peter Lougheed Leadership College.

Ms. Campbell educates Ms. Suffragette member Leri Koornhof on: the history of Canadian women's suffrage, Etruscan equality, gender parity in politics and in Prime Minister Trudeau's cabinet, primate social sex attitudes, and women in leadership positions. We even toss Trump's name in there!

He Said / She Said: Voting, Voicing, and Testifying

Studying the history of the women’s suffrage movement reveals many social factors that affected and continue to affect Canada’s legal system. As readers of the Ms. Suffragette blog are aware, 2016 celebrates one hundred years of women’s voting rights in Canada. Significant progress in this area has been made over the last century, as women and men now represent approximately equal numbers of voters [1].

By enacting voting rights for women, Canadian society recognized that women and men had equal voices in the political sphere. The ability to express one’s voice in a political forum reflects the fundamental right to express one’s personal opinions on important, public matters.Therefore, the right to vote is tied to the core of personhood. However, it is essential that equality between men and women extends outside the political sphere. Just as women are considered equal to men politically, they must also be considered equal to men individually, in social situations, and under the law.

In Canadian courts, the evidentiary testimony of a witness is presented through viva voce evidence, which is the legal term referring to oral testimony in court. In the search for the truth, a witness’s factual views on an event can be compared to another’s understanding of the same event. This comparison of views often occurs in the context of sexual assault trials. A complainant of sexual assault can relay the events as he or she views them, and the accused can also testify as to his or her version of the events in question. Courts are sometimes presented with a diametrically opposed, he-said/she-said version of events. In assessing the truth, the court will consider the credibility of the witnesses. In the Canadian legal system, the testimony of women and men is assessed equally, irrespective of their gender [2]. However, in countries that include Islamic Shari’a law in their legal systems, a woman's testimony is not accorded equal weight to a man’s testimony. For example, in countries such as Bahrain, Jordan, Kuwait, Lebanon, Saudi Arabia, Syria, and the United Arab Emirates, women are not perceived to be as credible as men in regards to their testimony [3].

Further, sexual violence tends to be perpetrated by men upon women, and this gender-based trend is fairly uniform globally [4]. In legal systems where women are viewed as having equal voices to men, victims of sexual violence may have better access to justice, and perpetrators are more likely to be reprimanded or rehabilitated. However, in countries that incorporate Shari’a law into their legal systems, victims have less opportunities to have their voice heard under the law. As women are more likely to be victims and as men are more likely to be perpetrators, women have less chances to effect retribution against male perpetrators.

In traditional Shari’a religious courts “the testimony of two women is required to match the value of one man’s testimony” [5]. In Jordan, for example, a woman who applies for a divorce on the basis of domestic violence must provide the court with “two male witnesses” because her own evidence is insufficient [6]. Lebanon, Kuwait, and Syria have civil and criminal court systems for most claims and offences. However, the systems are supplemented with a Shari’a court system [7]. The Shari’a courts, where a woman’s testimony is worth only half of a man’s testimony, prosecute moral crimes. Moral crimes in these religious courts include adultery, marital rape, and “honor” [sic] crimes. An example of a potential honour crime is “the murder or beating of [a woman] for alleged sexual misconduct” [8].

Due to international pressure, especially from the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), many countries have moved away from purely Shari’a-based legal systems in order to increase the legal and political rights of women [9]. Bahrain ratified CEDAW in 2002, but with reservations concerning “family law, equality, freedom of movement, and residence” [10]. Generally, women in Bahrain are equal to men in the legal courts, but Shari’a courts still “state that a valid witness should be two men, or two women and one man” [11]. Egypt ratified much of CEDAW in 1981, and a woman’s testimony is legally equal to that of a man [12]. However, conservative power structures still make access to justice difficult for women when bringing assault claims to the courts [13]. The United Arab Emirates ratified many of the CEDAW Articles in 2004, but retain “precepts of Shari’a regarding [certain traditional] rights” [14]. For example, despite Dubai’s international appeal, in the absence of a confession to sexual assault, four adult male witnesses must supplement a female complainant’s testimony in order for a court to proceed with a conviction [15].

In Canada’s legal system, a woman’s voice is equal to that of a man in regards to court testimony. However, female complainants of sexual assault still face a stigma that is not attributed to complainants of non-sexual violence. Since sexual violence is a gender-based phenomenon, women are often disproportionately affected and negatively treated when they allege that they were sexually assaulted. The highly-publicized Jian Ghomeshi sexual assault trial was completed last week, and the judgment will be released on March 24th. Check back tomorrow for Ms. Suffragette’s analysis of the treatment of the female complainants and why the history of women’s positions in society is so important to the study of law.

 

[1] “Estimation of Voter Turnout by Age Group and Gender at the 2011 Federal General Election” (17 February 2016), online: <http://www.elections.ca/content.aspx?section=res&dir=rec/part/estim/41ge&document=report41&lang=e>.

[2] Sameena Nazir & Leigh Tomppert, Women's Rights in the Middle East and North Africa: Citizenship and Justice (New York: Rowman & Littlefield Publishers, 2005) [Nazir].

[3] Ibid.

[4] “The Facts: Gender Inequality and Violence Against Women and Girls Around the World” (17 February 2016), online: <http://www.advocatesforyouth.org/publications/publications-a-z/1556-the-facts-gender-inequality-and-violence-against-women-and-girls-around-the-world>.

[5] Nizar, supra note 2 at 44.

[6] Ibid at 114.

[7] Ibid at 44, 128, 278.

[8] Ibid at 278.

[9] Ibid at 54.

[10] Ibid at 52, 54.

[11] Ibid at 53.

[12] Ibid at 73.

[13] Ibid at 71.

[14] Ibid at 317.

[15] “Dubai sentences Norwegian woman who reported rape” (17 February 2016), online: <http://www.bbc.com/news/world-middle-east-23381448>.

“Pyrotechnic” Eloquence: Maritime Provinces Part II [1]

"For years we agitated gently," but it was "surprising to find otherwise delightful people fly into terrific rages and order us out of their offices, when they learnt what our mission was" [2].

Today we continue the discussion on the suffrage movement in the Maritime provinces. In addition to the challenges that the “weight of indifference” presented, conservative opposition among the provinces’ legislatures delayed the vote for women, especially in Prince Edward Island, as well as Newfoundland and Labrador. Nova Scotia and New Brunswick enfranchised women in 1918 and 1919, respectively. Women in Prince Edward Island, along with Newfoundland and Labrador, waited until 1922 and 1925.

The Nova Scotia Attorney-General, Honourable J.W. Longley, was the province’s most vocal opponent to women’s suffrage. His “force and eloquence” were “a brilliant pyrotechnic display” of his views on women’s traditional roles [3]. During one legislative debate, Longley argued that voting would interfere with women’s four roles:

[F]irst, the bearing and bringing up of children, and this is the highest. Second, the creating of home and the beautifying of home life…. Third, to charm men and make the world pleasant, sweet and agreeable to live in. Fourth to be kindly and loving, to be sweet and to be cherished, to be weak and confiding, to be protected and to be the object of man’s devotion. [4]

Therefore, in the years prior to enfranchisement it was thought that a woman’s main purpose was to serve her husband, and her political opinion would be superfluous to that of his. In many regions, unmarried women were initially able to vote, only to lose that power upon marriage [5].

Voting rights for women were achieved in the Maritimes not because lawmakers considered women to be equal or to be deserving, but rather, they were able to “earn” the right to vote by helping the men in the war effort between 1914 and 1918 [6]. Many male supporters of women’s suffrage, such as politicians and news editors, helped appeal to the legislature to give women the vote in order to repay them for their wartime work.

As in most of Canada, Maritime women’s voting rights were granted before the Persons Case and before modern ideals of equality between the sexes developed. During a time when some men did not consider women to be equal citizens, radical liberals presented a strong opposition by maintaining that women had worked hard, just like men, and for men’s benefit, and therefore should be reimbursed with greater political rights [7]. The appeal to equality between the sexes was not as persuasive as it is today, and some men loudly voiced their disdain.

The Nova Scotia General Assembly finally acceded to calls for women’s suffrage in 1918. Catherine Cleverdon, in her seminal study “The Woman Suffrage Movement in Canada”, describes the movement as “sporadic” and as a “by-product” of the Women’s Christian Temperance Union’s campaign for prohibition [8]. This is not surprising given the “customary link between prohibition and equal franchise”, as legislators who were opposed to prohibition tended to oppose women’s suffrage as well [9].

New Brunswick, who had separated from Nova Scotia in 1784, granted women the vote in 1919, just a year after Nova Scotia. New Brunswick has been compared to “a younger sister who often patterns her actions after those of an older member of the family, [and] frequently looked for guidance to the senior province lying eastward” [10]. The women’s suffrage movement in New Brunswick struggled less than its counterpart in Nova Scotia for several reasons. First, the general apathy toward women’s suffrage was less of a “dead weight” than that of Nova Scotia’s because the New Brunswick legislature looked to progress in Nova Scotia with admiration. Second, New Brunswick women benefitted from more petitions and frequent delegations to the legislature, indicating that a significant number of women sought voting rights. Third, the Saint John Daily Telegraph provided public, male support for the suffrage movement. And fourth, the Enfranchisement Association in Saint John, New Brunswick, had a stronger public recognition than the same organization did in Nova Scotia. This was partially due to the fact that the women’s suffrage movement had finally gained better publicity by extending past western and central Canada to the conservative stronghold of the Maritimes [11].

Prince Edward Island’s geographic isolation and small population “built up a complete immunity to outside suffrage influences and was well content that no native variety of feminism root in its soil” [12]. The Prince Edward Island press reported on suffrage issues including women’s federal enfranchisement, voting rights’ correlation with educational enrichment, and the public benefit to gaining women’s “advice on matters pertaining to health, morals, and the home” [13]. Thus, although the newspapers brought attention to suffrage in Prince Edward Island, women continued to be siloed into customary roles. In 1919, the legislature promised that it would consider granting women the right to vote by 1922. Despite much opposition and rhetoric about women’s traditional roles in the home, the debt owed to women’s work during the war convinced conservative opponents to grant women the right to vote.

Finally, in 1925 Canada’s oldest colony, Newfoundland and Labrador, followed the other three Maritime provinces and granted women the right to vote. The active campaign in Newfoundland and Labrador lasted thirty-five years, starting with the formation of the Women’s Christian Temperance Union in 1890 [14]. Conservative male attitudes resisted the campaigns for suffrage partially because they were coupled with prohibition campaigns. Temperance suffragists found a correlation between alcohol, domestic violence, and women’s lack of political rights, making prohibition a natural co-campaign. Likewise, women’s suffrage was a natural co-campaign for many clergymen [15]. Many conservative men in positions of power contested the increase of women’s liberty which was coupled with a restriction on men’s freedom. After granting women the right to vote in municipal elections in 1921, the provincial legislature finally granted full voting rights to women in 1925.

The four Maritime provinces had long been considered more conservative than Ontario and the provinces to the west. At the same time, the low numbers of women actively involved in the suffrage movement exhibited an air of indifference toward attaining the right to vote. Politicians used this perception of indifference and the Victorian views on traditional gender roles to delay granting women full voting rights. Nova Scotia and New Brunswick, with their stronger ties to the rest of Canada, granted women voting rights sooner. Prince Edward Island along with  Newfoundland and Labrador retained their isolated, conservative cultures until the 1920s.

Political rights for women relate not only to a voice on a ballot. Political equality translates into being treated equal on an individual level. Stay tuned tomorrow and Friday for discussions on how women’s voting rights affect women’s personal lives under the law!

[1] Catherine L Cleverdon, The Woman Suffrage Movement in Canada (Toronto: The University of Toronto Press, 1974) at 161 [Cleverdon].

[2] Ibid at 211.

[3] Ibid at 161.

[4] Ibid.

[5] Ibid.

[6] Ibid at 169, 170, 176, 193, 206.

[7] Ibid.

[8] Ibid at 158-159

[9] Ibid at 159.

[10] Ibid at 178.

[11] Ibid at 156.

[12] Ibid at 198.

[13] Ibid at 206.

[14] “Women’s Suffrage”, Heritage Newfoundland and Labrador (16 February 2016), online: <http://www.heritage.nf.ca/articles/politics/women-suffrage.php>.

[15] Cleverdon, supra note 1 at 210.

Call me Old but not Traditional [1] - Henrietta Muir Edwards

The fifth member of the Famous Five women shares her name with the "Persons Case", Edwards v Canada (Attorney General), simply because her surname occurs first in the alphabet [2]. Henrietta Muir Edwards challenged mainstream Victorian-era Christian attitudes that accepted the exclusion of women. Refusing to accept women's subordinate position to men, Edwards considered everyone equally "coworkers with God" [3]. Her activism directly helped those in need and she rallied others to join.

The oldest of the Famous Five women prided herself on challenging traditional, antiquated beliefs in society. Edwards was born in 1849 to a wealthy, cultured, and religious family in Montréal, but spent her adult life relatively poor compared to her four colleagues. Her legal research and activist work always went unpaid [4]. Although most young, wealthy women of her day followed their privileged and traditional trajectory, Edwards used her Evangelical Christian principles to provide relief for less fortunate women. Rather than marry young, she convinced her father to buy a large house in downtown Montréal where she and her sister provided rooms, meals, reading classes, job training, and legal advice for young single women [5]. Edwards provided these services by creating the Working Girls Association, which eventually became the Young Women's Christian Association (YWCA). Edwards and her sister also founded "Working Woman of Canada", the first Canadian magazine for working women [6].

After marrying Dr. O.C. Edwards in 1876, Edwards and their three children accompanied Dr. Edwards as he practiced medicine throughout Canada, including the Northwest Territories, Ontario, Manitoba, and Alberta. Wherever they lived, she uplifted women and children who were at a disadvantaged position in society [7]. She engaged family, friends, and activists in discussing social issues. To advance her goal of women's equality, Edwards followed and researched Canadian law [8]. She earned the reputation of being well-versed in laws affecting women [9], and wrote organizational bylaws and letters to garner support for women's foundations [10]. In 1899, she became Convenor of Laws for the National Council of Women, compiling provincial laws affecting women and children [11].

Edwards was able to use her social position to leverage support for women's issues. With the assistance of Lady Aberdeen, the wife of the Governor General of Canada, Edwards founded the National Council of Women, the Victorian Order of Nurses, and the YWCA [12]. She lobbied extensively for the Alberta legislature to pass the Dower Act, SA, ch 14, in 1917 which gave property rights to widows. Edwards recognized that to gain rights equal to men, women needed to be recognized under property law, as suffrage was historically granted to property-owning men. In her post as Chair of the Provincial Council of Alberta, she furthered her cause to gain equal rights for parents in divorce matters and for women in prison [13].

When she was not working hard for equal rights, Edwards spent her leisure time painting and was known widely for her talent therein. She painted portraits of Lord Strathcona and Sir Wilfrid Laurier, among others. Much of her work was exhibited in Montréal, Ontario, and Chicago [14]. She was a loving wife and mother, and considered herself blessed to have had her husband's companionship "in perfect accord" for 39 years, as well as her three remarkable children, only one of whom outlived their mother [15].

It might seem that Canadian society's views "changed" with the introduction of voting rights for women in 1916 and with the Persons Case in 1929. However, we must remember that changes in law reflect societal values and that laws are not enacted in a vacuum. The women's suffrage movement preceding the 20^th century and the work of the Famous Five forced society to recognize that a woman should be viewed as equal to and distinct from all other men, including her husband, father, brother, or son. Women's organizations such as those founded by Edwards and Lady Aberdeen, along with the Women's Christian Temperance Union, the Women's Canadian Club, and the Women's Press Club, not only effected social change, but reflected the general progressive attitudes emerging out of Victorian-era Canada and Britain. The driving force behind the legal reform which gave women voting rights and the right to be appointed to the Senate can be attributed to notable members of the movement, including the Famous Five.

 

[1] Nancy Miller, The Famous Five: A Pivotal Moment in Canadian Women's History, "Henrietta Muir Edwards, First to Sign" (Cochrane: Deadwood Publishing, 2003) [Miller] at 66.

[2] Edwards v The Attorney General of Canada [1929] UKPC 86, [1930] AC 124 (PC) [Edwards v AG]; Miller, supra note 1.

[3] Miller, supra note 1 at 69.

[4] Ibid.

[5] Library and Archives Canada, Celebrating Women's Achievements, "Henrietta Muir Edwards", https://www.collectionscanada.gc.ca/women/030001-1106-e.html [Collections Canada].

[6] Canadian Women Artists History Initiative, "Edwards, Henrietta Muir", Concordia University, http://cwahi.concordia.ca/sources/artists/displayArtist.php?ID_artist=136 [CWAHI].

[7] Miller, supra note 1.

[8] Ibid.

[9] Collections Canada, supra note 5; Miller, supra note 1.

[10] Miller, supra note 1.

[11] Ibid.

[12] Ibid.

[13] CWAHI, supra note 6.

[14] Ibid.

[15] Miller, supra note 1.

Loyola High School Decision of the Supreme Court of Canada

The Supreme Court of Canada released today its long-awaited decision in the Loyola High School case, 2015 SCC 12, and I’m looking forward to an informal discussion on the case this afternoon with some University of Alberta faculty colleagues during one of the latter days of my visit here.  And there will be much discussion of this case in the time ahead, but I am going to put down some preliminary thoughts right now:

In the case, the Supreme Court holds that there was a violaton of religious freedom rights when Quebec refused to grant an exemption to a Catholic high school from a requirement to teach a secular religion and ethics course in an entirely neutral manner.  The case marks a significant vindication for religious freedom in a case where many were not sure where the Supreme Court would go in light of its own past decision in S.L. concerning a differently framed challenge by individuals in a public school to the same legislation.

However, there is a complex split in the case, with the reasoning split between a four-judge majority judgment of Justice Abella (with LeBel, Cromwell, and Karakatsanis JJ. suporting it) and a three-judge concurring judgment by Chief Justice McLachlin and Justice Moldaver (with Rothstein J. supporting their judgment). [As a footnote, I might note that the case was heard in March 2014 a few days after the Court had ruled Justice Nadon’s appointment to their Court invalid, so the Court had no reasonable option but to sit as a panel of seven – what would have happened with nine justices will remain forever unknown.]

The ways the two groups diverge are complex, interesting, and may impact on future cases (and require more argument to sort through):

(1)   Justice Abella is able to strongly reaffirm her previous case law in support of a collective dimension to religious freedom with extra material in support (passage around para. 60), while the other judgment is trying to piece through various strands of case law, including Justice Abella’s previous dissent, to try to show that they are reaffirming a support for collective dimensions to religious freedom (around 92-93).

(2)   However, Justice Abella does not go so far as to recognize religious freedom held by corporations, suggesting that this is unnecessary to decide for the case (33), while McLachlin CJ and Moldaver J are ready to affirm that some corporations hold religious freedom rights (95), though subject to a test that offers this right mainly to corporations with a religious purpose and acting in accord with that religious purpose (100, with 138 making clear they don’t necessarily see other corporations having such rights).

(3)   Justice Abella tries to deal with the case in terms of the Doré analysis of uses of statutory discretion (36ff), while Chief Justice McLachlin and Justice Moldaver go directly to a freedom of religion analysis of the decision made (113).

(4)   Justice Abella would actually allow more balancing of considerations and suggests that a requirement to teach about other religion in a neutral way may not actually be unconstitutional in every circumstance (71) whereas Chief Justice McLachlin and Justice Moldaver see a requirement that Catholics teach about Catholicism neutrally as a more direct freedom of religion violation (143).

(5)   As a result of these differences, Justice Abella would send matters back to the Quebec Minister for reconsideration in light of the reasons, whereas Chief Justice McLachlin and Justice Moldaver would immediately grant an exemption for Loyola High School so as not to impose further delay on it having a remedy (165).

There will be more to sort out in the time ahead, but these are some thoughts on some differences in the judgments.  That said, importantly, all the justices are effectively aligned in strongly affirming that a religious community has a right within freedom of religion to continue its existence through education and teaching and that a secular state must respect religious communities.

Flying Spaghetti Monster

A while back, I blogged about a Festivus Pole at a firehouse lawn. It turns out that the Festivus pole is now becoming a standard display at state capitals. Moreover, the Pastafarians have managed to get their Flying Spaghetti Monster displayed in at least two state capitals: Florida's and Wisconsin's. Hmm, is it too late to put something up in my faculty's hallway?

Russell v. Copleston on the Existence of God

One my colleagues sent me this link to a classic debate that took place between Bertrand Russell and F.C. Copleston in 1948 about the existence of God:

On January 28, 1948 the British philosophers F.C. Copleston and Bertrand Russell squared off on BBC radio for a debate on the existence of God. Copleston was a Jesuit priest who believed in God. Russell maintained that while he was technically agnostic on the existence of the Judeo-Christian God–just as he was technically agnostic on the existence of the Greek gods Zeus and Poseidon–he was for all intents and purposes an atheist.

The famous debate is divided into two parts: metaphysical and moral. In the metaphysical part, which is presented here, Copleston espouses what is known as the cosmological argument for the existence of God. Elements of the cosmological argument go back at least as far as Plato and Aristotle, who held that the universe required a “prime mover” outside of itself.

Click on the link to read the more about the rest of debate.  You can also listen to some of the debate here:

 

Don't Tax My Congregation

I don't often blog about taxes, but when I do .... Pat Paradis pointed out this interesting case that The Court has done a writeup. The case, Blackmore v. The Queen, involves the Mr. Blackmore of the Mormon group located in Bountiful. BC who challenged his taxes on the grounds that they should be exempt under the 'religous congregation' exemption in the Income Tax Act.

The case was heard at the Tax Court of Canada, requiring a judge who ordinarily deals with mundane tax law to have to deal with issues relating to religion. The Court ultimately rules against the group, and a more detailed explanation can be found here.

Conflicting Rights

Karen Selick explains why conflicting rights means that they are no rights at all. Rex Murphy also chimes in on the case.

Once upon a time, rights were only negative rights, i.e. the right to be free from state violence. Today, too often rights are associated with positive rights, i.e. a right that imposes an obligation on someone else.

This is why I have never been in favor of the so-called human rights commissions, especially in their regulatory agency form. They tend to be in the business of creating positive rights instead of vindicating the negative ones. Rather, at best, I would have something similar to the American Section 1983 civil rights claims vindicated in the courts, where, over time, a proper set of judicial precedents are set outlining these rights. Not only would the courts be forced to deal with the issue of civil rights head on (instead of in a judicial review manner), but human rights or civil rights have always been the bread and butter of judges.

 

Book Review

God's Joust, God's Justice
John Witte, Jr.

Grand Rapids: William B. Eerdmans Publishing Company, 2006

 498 Pages

 

Witte, a professor at Emory University, offers an intriguing account of the role of religious life shaping our legal heritage, and makes a case of its continued relevance in tracing our history and its role both in continuing our particular historical circumstances, as well as an argument for its necessity in interdisciplinary legal studies. 

The book is a compilation of previously published articles that have been moulded together, so one can expect less of an exhaustive argument, but rather illustrative “snippets” that highlight and emphasize issues that align more with both his methodological approach and traditional American preoccupations, viz. human rights, constitutionalism and American founding, and understandings of family before and after Roe v. Wade. As such, for the purposes of contextualization, it does bear the marks of a distinct tradition and most notably in its debt to his mentor Harold Berman.

 

Overview of approach:

 

“For me, history is more than a series of tricks that we play on the dead, or that the dead play on us. History is more than simply an accidental chronology of first one thing happening, and then another. For me, history is also a source of revelation, a collection of wisdom...The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust” (4).

 

Witte puts forth what he calls “the binocular of law and religion” which is to say that, in the Western tradition, the historical vision is one part law, one part religion that interact and bounce off each other, and the means that informs the major currents of change has been dialectic: “Every legal tradition has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularization of law.  But the dominant reality in the West is that law and religion stand not in monistic unity, nor in dualistic antinomy, but in dialectic harmony” (5). The modes of cross-fertilization include, but are not limited to:

Conceptual overlap – eg, sin and crime, covenant and contract, righteousness and justice

Formal overlap – eg, liturgy and ritual, habits of tradition and precedent, shared sources of authority and power

Methodological overlap – analogous hermeneutic interpretation, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing doctrine

Professional relationship – both have officials

Institutional interaction – political and ecclesiastical officials and institutions (5)

 

As he notes, the goal of the “binocular” is to avoid the monocular view of looking to history with law or religion alone, for the purposes of:

Grand civilizational pictures – in which he follows Berman by identifying a distinctly Western tradition with its distinct watershed moments, particularly Rome and its conversion under Constantine, the Papal Revolution, the Protestant Revolution, The Enlightenment, and Post-WWII.

Narrower denominational pictures – in which emphasis is placed on mainly Protestant interactions and influences post-Reformation

Discrete doctrinal pictures of law and religion in Western history – revealing origins and trajectories of issues as they have played out and influence our understanding, with an emphasis on human rights and the family (6)

 

 The merits of the approach is an illuminating perspective that casts light on panoramic glimpses of history and ways of conceiving unifying threads that persist and continue to inform. It situates itself comfortably and contents itself as being detached from other scholarly investigations of the past. The student of history will find the approach most problematic, especially since it refuses to engage itself with defences from competing interpretations and problems. One issue comes notably to mind, that law and religion are not defended from the critiques that would displace them as foundational, nor an outline of the basis of granting them similar status in historical investigation, which would require deeper theorization. Thus, the reader is left with an interesting approach, but which presses no compulsion in acceptance. However, one suspects a combination of textual approachability, time, faith, and perhaps other unarticulated theological underpinning grounds the apparent complacency.

 

So much for me trying to sound academic. Bottom line: interesting book, controversial issues, moderated tone.

 

Bruker v. Marcovitz - Was it Justiciable?

I understand that our faculty is searching for a new hire in (preferably) family law.  The SCC's pronouncement this morning in Bruker v. Marcovitz should make for an interesting jobtalk.

My first impression is that I am (strongly) inclined towards the dissenting reasons of Deschamps and Charron JJ who state that judicial consideration of religious questions should be predicated on a demonstrated violation of a rule recognized in positive law.

The intersection of legal and religious questions is not, by the way, a novel concern.  In Cridge v. Bishop of British Columbia, (1874) 1 B.C.R. (Pt. 1) 5 (S.C.), Chief Justice Begbie rested his authority to hear an appeal from an Anglican bishop's disclipline of a clergyman on the Crown's issuance of letters patent to the Bishop.  However, five years later the Ontario High Court in Dunnet v. Forneri (1877), 25 Gr. 199 concluded otherwise, holding that courts cannot address questions going to religious doctrine.