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Queen's University
 

Brockie

Facts.

In 1999, an Ontario Board of Inquiry found that Born-again Christian Scott Brockie (and Imaging Excellence Inc.) had discriminated against Ray Brillinger (and the Canadian Lesbian and Gay Archives) on the prohibited ground of sexual orientation.  At the hearing, Brockie testified that his religious beliefs prohibited him from providing printing services to homosexuals and homosexual organizations. He contended, furthermore, that any remedial order obliging him to provide such services would infringe his rights to freedom of religion as guaranteed by the Canadian Charter of Rights and Freedoms.  Finally, he argued that forcing a religious individual to do something contrary to his fundamental beliefs would cause much greater harm than obliging an organization to find an alternative printing service provider. What Brillinger and the Archives experienced was little more than disappointment and inconvenience, in his point of view. The 2000 hearing was called to determine whether a remedial order to provide printing services to Brillinger could be made against Brockie. (Brillinger v. Brockie (No. 3) (2000), 37 C.H.R.R. D/15).

Questions

  1. Is freedom of religion subject to limitations ?
  2. Is there a test to determine the constitutionality of the remedial order?
  3. If so, did the proposed remedy meet the test in this case ?

Rulings

  1. Yes.
  2. Yes
  3. Yes

Reasoning

  1. In determining the legal limits of religious freedoms guaranteed in the Canadian Charter of Rights and Freedoms, the Board relied on two Supreme Court Rulings ( R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 and Ross v New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175) which determined that the freedom of religion is "subject to such limitations as are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others". The right to receive a public service without discrimination on the basis of sexual orientation is one of these fundamental rights and freedoms that may limit freedom of religion.
  2. In order to be successful, the remedial order to force Brockie to provide printing services had to pass what is known as the Oakes test. This test, set forth by Chief Justice Dickson in R. v. Oakes (1986), is made up of several measures. First, the body making the remedy must have a substantive objective (one that is both reasonable and justified in a free and democratic society). Second, the proposed remedy must be rationally connected to the objective. Third, the proposed remedy would have to interfere minimally with the constitutional rights of the respondent
  3. The proposed remedy met the Oakes test. The eradication of discrimination on the ground of sexual orientation is both reasonable and justified under the Ontario Human Rights Code. The proposed remedy, obliging Brockie to provide a service that he had previously denied to Brillinger because of his sexual orientation, is rationally connected to this objective. Finally, although imposing this remedial order would infringe the religious rights of one individual, it is constitutionally acceptable to do so because refusing services to members of the lesbian and gay community and their organizations would cause "very real harm" to society.

Further information on Provision of Services: Policy on Creed and the Accommodation of Religious Observances, s.1

Comment: The Ontario Divisional Court upheld this decision when it was appealed in 2002, but altered the remedy requiring Mr. Brockie to publish gay positive material that conflicted directly with his personal religious beliefs. Instead the Court held that Brockie be ordered to print only ordinary material, such as letterhead and envelopes.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000