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• Index • The Dhillen Case • The Pannu Case • The Nijjar Case • The O'Malley Case • The Roosma Case • The Moore Case • The Kurvits Case • The Schroen Case • The Caldwell Case • The Fancy Case • The Brockie Case • The Ross Case • The Trinity Case • Resources • Printer Friendly Version •
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
-
Is freedom of religion subject to
limitations ?
-
Is there a test to determine
the constitutionality of the remedial order?
-
If so, did the proposed remedy meet
the test in this case ?
Rulings
-
Yes.
-
Yes
-
Yes
Reasoning
-
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.
-
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
-
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.
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