TORONTO, April 3, 2007 – The Catholic Civil Rights League (www.ccrl.ca) regrets that
the Federal Court has taken a narrow view of freedom of conscience and religion, and freedom of association, in its decision not to revisit the Canadian Human Rights Commission’s refusal to grant a request to divert union dues to charity. The request was based on the union’s active and material support for same sex “marriage” legislation and other LGBT issues.
The League supported the request, initiated in 2004 by Susan Comstock, a federal government employee, and member of the Public Service Alliance of Canada (PSAC). The case offered an opportunity to address significant conscientious and religious rights issues raised by union advocacy of contentious social and political issues in the workplace, paid for with mandatory dues.
Susan Comstock applied in October, 2004 to her employer, The Treasury Board of Canada, through provisions of its collective agreement with the PSAC, to have her dues diverted to her parish church because of the union’s explicitly-stated policies of support for gay “marriage”. The union provided free office space to a group lobbying the government to pass Bill C-38, and has lobbied extensively on LGBT issues including during recent federal elections. PSAC opposes all forms of “homophobia” and “heterosexism”, which the union describes as “the presumption that everyone is heterosexual and that heterosexuality is superior to other forms of loving”. The union purports to suggest that heterosexism creates a “social edifice” denying the existence of the LGBT community and their families. Its policy stipulates that PSAC will actively oppose homophobia and heterosexism in the workplace and in the union, without any stated effort to accommodate union members who may have a conscientious objection to such positions.
The Treasury Board of Canada refused Mrs. Comstock’s request in March, 2005, stating in part that such diversion is available only to those whose religions forbid the payment of dues to employee organizations. Appeals to the federal Human Rights Commission followed. (See earlier press release for more background on this case.)
The Canadian Human Rights Commission refused to hear the complaint, ruling in February, 2006 that no link to a prohibited ground of discrimination had been established, and that other avenues for protest of the union’s activities were available to her. The Federal Court on March 30, 2007 dismissed the application for judicial review, stating that the request had been dealt with fairly and according to the procedures of the union, the employer and the Canadian Human Rights Commission.
In Federal Court Justice Frederick Gibson’s view, the Commission was within its governing authority to reject the application. He was not persuaded that the Commission was required to assess the merits of Ms. Comstock’s request to exercise this avenue of conscientious dissent, despite the specific language incorporated into the final version of Bill C-38, the federal government’s same sex “marriage” law passed in July, 2005, that stated in section 3.1: “no person shall be deprived of any benefit, or be subject to any obligation or sanction under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom”.
No reference is made in Mr. Justice Gibson’s reasons to this provision of the federal law.
The League has documented numerous cases where courts and human rights commissions are increasingly hostile to Canadians who are trying to assert their rights to religious freedom when opposing gay marriage. We have also intervened in court in a number of challenges on the subject. We share the concerns of many of our supporters that freedom of expression, particularly of religious expression, is increasingly discouraged in public life. The provisions of s. 3.1 of the 2005 same sex “marriage” bill have been largely ignored by decision-makers to date.
Provinces across Canada are engaged in a number of efforts to expand the inclusion of LGBT issues into provincial educational curricula, most notably in British Columbia after the settlement of another human rights complaint.
In addition to court and tribunal rulings generally favourable to homosexual activists, Canadians have also seen the spectacle of a bishop challenged by Canada Customs and Revenue Agency for the contents of a pastoral letter, the Knights of Columbus fined $1,000 for how they handled the cancellation of a hall rental to a lesbian couple, and university professors turning their backs on an honorary degree recipient because she opposed same sex “marriage.”
While the rights of clergy to decline to perform same sex wedding ceremonies have not been challenged to date, the rights of marriage commissioners and others whose employment involves weddings are much less clear cut. Provinces including British Columbia, Manitoba, New Brunswick and Saskatchewan have stated that marriage commissioners may not refuse to solemnize same sex ceremonies.
Whereas the Federal Court has narrowly defined the jurisdiction of Susan Comstock to have recourse to a conscientious exemption from her union’s aggressive political activity, the Ontario Court of Appeal recognized in January that a child could have two moms and a dad, based on the Court’s willingness to rely upon its “inherent jurisdiction”.
As the Ottawa Citizen noted in its editorial April 3, a union representing government workers has a particular obligation to avoid overtly political activity; apart from the unfairness of promoting an agenda with the money of people who may or may not agree with it, such statements can cast the neutrality of civil service staff into doubt.
And regardless of what union management may want to think, many union members do not support such activism. Mrs. Comstock’s attempt to have her freedom of conscience rights recognized was supported by union members last May, when PSAC Local 70160 (Industry Canada, Ottawa) voted, with none opposed, to support a motion denouncing “the actions of the leadership of PSAC for failing to accommodate Sister Susan Comstock’s religious beliefs by allowing her to divert her union dues to a charity.” In addition, many individual union members across Canada contacted her to express support of her actions.
Mrs. Comstock is giving serious consideration to an appeal, citing the protection of religious freedom in the federal same-sex “marriage” law in addition to points of the decision itself that could be challenged.
– Catholic Civil Rights League, April 3, 2007.