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Outgoing Letters and Public Statements

January 19, 2011

Re: Marriage Commissioner Reference
An open letter submitted to Don Morgan, Minister of Justice and Attorney General, The Province of Saskatchewan, January, 19, 2011

Canadian society is ‘pluralistic’ and its ‘public sphere’, as confirmed by the Supreme Court of Canada, is a religiously inclusive one. In fact, in the Chamberlain v. Surrey School District decision, the Supreme Court of Canada unanimously supported the inclusive nature of the public sphere. The law in Canada, from before Canada was even a nation, has been particularly concerned with religious inclusiveness and has consistently held the right to freedom of religion to exist even before the Charter of Rights and Freedoms became part of our constitution.

Our high court has consistently noted that the right to freedom of religion is broad and it includes the right to belief and the right to act on those beliefs. If religious rights are to be ‘broad’ and ‘expansive’, as set out by our Supreme Court, they must be accompanied by the right to act in accordance with those beliefs. It is the role of governments in Canada to ensure all enjoy these cherished freedoms.

We are therefore very disappointed with the decision of the government to refuse to accommodate the religious beliefs of marriage commissioners.

You stated to the media that the ‘single-entry point’ system proposed in the decision may not, according to the court, “stand up to court scrutiny”. It is important, however, to review the actual statements made by the court.

The court found that a refusal to accommodate the rights of marriage commissioners would result in a violation of their religious freedoms, but determined that this was necessary, in considering the two legislative proposals before it, to ensure the equality rights of gay and lesbian individuals.

However, in response to the questions posed by the government in the Order-in-Council, the court did propose a single-entry point alternative.  Under such a system, couples would apply to a central office with an application for marriage services. Based on the information contained in the application, the office would assign a commissioner or a list of commissioners able to provide the services. The simple application process would ensure that the rights and needs of all parties are respected. As the decision states, “none of the other participants in the hearing...expressed concern that such an approach would be impractical, overly costly, or administratively unworkable.” Egale, one of the intervenors, even noted that such a system was operating in Toronto.

The court went on to explain that the single-entry point system would need to be assessed for constitutionality in another forum. It would not have been appropriate for the court to do a constitutional analysis of this alternative within the Reference decision itself. This is an important distinction from what was reported in the press this week. The Court of Appeal did not state that the alternative system “may not stand up to court scrutiny”. It did say that its constitutionality needed to “be assessed in light of all the relevant facts”. It also stated that the court’s finding that the alternative system would be less restrictive of equality rights would not necessarily render it constitutional. Constitutionality would have to be assessed.

Further, the Court of Appeal’s decision is problematic as it overlooked a key section of the Reference re: Same-Sex Marriage decision which had been brought to its attention in both the written and oral submissions. While the Court quoted excerpts from the decision, it failed to consider, in its written decision, the following:

The question we are asked to answer is confined to the performance of same-sex marriage by religious officials. However, concerns were raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages. The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would hold for these concerns. (para 59)

The Supreme Court of Canada has clearly set out that any individuals who are “being compelled to otherwise assist in the celebration of same-sex marriage”, other than already exempted religious officials, will have their religious freedoms violated.

The government of Saskatchewan has a constitutional duty to accommodate its employees. The Supreme Court of Canada established that there is a need to reconcile and balance competing rights in order to avoid creating a hierarchy of rights. This alternative permits a reconciliation of both sets of rights.

There is a great likelihood that this alternative system will survive constitutional scrutiny. It is our hope that the government will, upon a thorough examination of relevant case law, reconsider its position and find a solution that will ensure respect for all rights. In doing so, the government would join the ranks of six other provinces and territories that currently recognize and respect the rights of its marriage commissioners by offering accommodation in practice or in policy.

There is, in this case, no need to violate one Canadian’s rights in order to uphold another’s. The rights of all parties can be accommodated and respected rather than excluding one set of rights in favour of another. It is the inclusion of individuals from a wide variety of cultures, beliefs and perspectives in government positions that ensures and communicates that the state is truly committed to a diverse, multicultural society.

I urge you to enshrine protection for freedom of religion and conscience of marriage commissioners in accordance with their rights under the law.

Sincerely,

Faye Sonier
Legal Counsel, The Evangelical Fellowship of Canada


cc.     Hon. Brad Wall, Premier of Saskatchewan, premier@gov.sk.ca
         Mr. Frank Quennell, Justice Critic, fquennell@mla.legassembly.sk.ca

Outgoing Letters

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EFC President Bruce J. Clemenger writes regular commentaries about public policy issues. The EFC magazine Faith Today often publishes articles and essays that examine such issues.

   
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