FACTUM OF THE INTERVENOR THE CANADIAN CONFERENCE OF CATHOLIC BISHOPS

Transcription

1 COURT OF POLI 308A BETWEEN: AND: AND: ORGANIZATION OF REFORMED GAY AND LESBIAN EVANGELICALS THE CITY OF VANCOUVER, and PRIDE APPELLANT (PLAINTIFF) RESPONDENTS (DEFENDANTS) THE B.C. CIVIL LIBERTIES ASSOCIATION, THE CANADIAN CONGERENCE OF CATHOLIC BISHOPS, THE CANADIAN JEWISH CONGRESS, THE CANADIAN MUSLIM CIVIL LIBERTIES ASSOCIATION, EGALE, and THE EVANGELICAL FELLOWSHIP OF CANADA INTERVENORS FACTUM OF THE INTERVENOR THE CANADIAN CONFERENCE OF CATHOLIC BISHOPS Gavin Cameron Sophie Chong Madeline Sept Philip Wong Council for the Canadian Conference of Catholic Bishops

2 INDEX PAGE NO. PART I STATEMENT OF FACTS 1 PART II ISSUE(S) 1 PART III ARGUMENT 2 a) Analysis of Section 2(a) Violations 2 b) Analysis of Section 2(b) Violations 7 c) Analysis of Section 15 Violations 17 PART IV ORDER REQUESTED 22 LIST OF WORKS CITED 23 APPENDIX: DIVISION OF LABOUR 25

3 Page 1 PART II STATEMENT OF FACTS 1. We agree with the facts as originally presented to the court. PART II ISSUES I. Does Orgle s exclusion from the PRIDE parade amount to a violation of the freedom of conscience and religion clause of the Charter under section 2(a)? II. III. IV. Do the City of Vancouver Community Tolerance Guidelines violate the freedom of conscience and religion clause of section 2(a) of the Charter? Does Orgle s exclusion from the PRIDE parade amount to a violation of the freedom of expression clause of the Charter under section 2(a)? Do the Community Tolerance Guidelines of Vancouver violate the freedom of expression rights under section 2(b) of the Charter? V. Does the rejection of ORGLE s participation of the PRIDE parade amount to a violation the freedom equality rights of section 15 of the Charter? VI. Do the City of Vancouver Community Tolerance Guidelines violate the freedom of equality rights of section 15 of the Charter?

4 Page 2 PART III ARGUMENT Analysis of Section 2(a) Violations The Traditional View of Marriage 2. The traditional view of marriage holds that marriage is a sacred and natural institution, forming the basis for the family unit. The family in turn comprises the fundamental building block for society. Marriage is traditionally defined as, the lawful and voluntary union of one man and one woman to the exclusion of all others. The Roman Catholic Church considers marriage to be a celebration of sacred commitment and interrelationship between a man and a woman. It is this unique form of commitment that forms the basis of society and a new generation of citizenry. 1 Although the Church does not support the views of homosexual persons with respect to the right to marriage, the Church nonetheless believes that homosexual persons must be accepted with "respect, compassion and sensitivity." 2 Freedom of Religion 3. In R. v. Big M Drug Mart and R. v. Edwards Books & Art v. the Queen, the Supreme Court held that the purpose of s.2(a) is to "ensure that society does not interfere with profoundly personal beliefs that govern one's perceptions of oneself, humankind, nature, and in some cases, a higher or different order of being." 3 Further, Dickson J. held that every individual [must] be free to hold and to manifest whatever beliefs and opinions his or her conscience 1 Marriage in the Present Day, Canadian Conference of Catholic Bishops, Available at 2 Catechism of the Catholic Church, Sec R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 346

5 Page 3 dictates, provided inter alia that such manifestations do not injure his or her neighbours or their parallel right to hold and manifest beliefs and opinions of their own Freedom of religion, in its essence, is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. 5 As noted in Big M Drug Mart, freedom itself is primarily characterized by the absence of coercion and constraint. FIRST ISSUE: Does Orgle s exclusion from the PRIDE parade amount to a violation of the freedom of conscience and religion clause of the Charter under section 2(a)? The Exclusion of ORGLE from PRIDE Activities 5. The removal of ORGLE s choice to participate in the 2005 Gay Pride Parade is a violation of its constitutional right to freedom to hold and manifest religious beliefs without constraint. 6. Through its support of the exclusion of ORGLE to participate in, or in the alternative, receive proper funding, permit and support for similar activities, the City of Vancouver, in effect, instructs citizens to believe only one set of ideas and values. As shown by R. v. Big M Drug Mart, it is clear that the freedom of religion, as interpreted by the Court, includes the negative entitlement, to be free from being told by the state to embrace interests or ideas antithetical to what one believes. 6 To restrict the members of the Catholic Church from the dissemination of its practices is to ignore the diversity of religious and individual preferences 4 Ibid. 5 Charter Decisions, Canadian Charter of Rights Decisions Digest. Canadian Legal Information Institute, Available online at 6 Ibid.

6 Page 4 within the community. Further, according to Dickson J., in cases where there is a religious compulsion for practices, the Charter requires the law to accommodate minority religions by according exemptions for their practices The Canadian Conference of Catholic Bishops (CCCB) believes that it is the right of all citizens to have the choice to receive interests or ideas that embrace their own beliefs. In withholding the right of ORGLE to participate and have an equal voice in the Gay Pride Parade, the City of Vancouver is violating every individual s right to hold and manifest its own beliefs which are true to his or her own conscience. 8. Further, the exclusion of ORGLE raises important social questions. Central to the Court s deliberation should be whether the community at large is best served by a system which coerces and silences the rights and freedoms of one group in exchange for promoting those of another. The Canadian Conference of Catholic Bishops submits that it holds the right to manifest its beliefs and that in doing so, it will contribute to the moral and social fabric of the community at large. While promoting human rights is a worthy cause, they should not be employed to contravene the rights of others, or undermine an institution that has proved its worth over time In a free and democratic society, such restriction is a threat to the continued, healthy exercise of the Church s religious beliefs in the public sphere. In effect, the Church is unfairly portrayed as promoting intolerance and prejudice, when in fact, it is merely exercising its constitutional right to manifest its beliefs in a civil and considered fashion. Furthermore, the exclusion of ORGLE fails to acknowledge the extent to which a diversity of beliefs contributes to a healthy, functioning democratic society. 7 Hogg, Peter W. Constitutional Law of Canada, fourth student edition. Toronto: Carswell Publishing, 1996, p Factum, Canadian Conference of Catholic Bishops, May 2004.

7 Page 5 SECOND ISSUE: Do the City of Vancouver Community Tolerance Guidelines violate the freedom of conscience and religion clause of section 2(a) of the Charter? The City of Vancouver Community Tolerance Guidelines are Discriminatory 10. The City of Vancouver Community Tolerance Guidelines violates s.2(a) of the Charter because it discriminates against religious organizations, on the premise that the cultural and community life of Vancouver cannot be enhanced through the promotion of views which are inherently intolerant. This approach is inherently false because it predicates the promotion of tolerance on restriction and/or denial of alternate views in society. If the ultimate goal is an augmented sense of community and societal cohesion, it follows that the suppression of the rights and freedoms of one group versus the allowance of those of another, is in itself, contradictory, for clear favouritism is shown towards one segment of the population. 11. The CCCB has the right to hold and manifest its beliefs even if they do not support the views of homosexual persons. By permitting one group in society to undertake and participate in activities that promote a particular viewpoint, while simultaneously denying that right to an alternative group of citizens, the effect is a suppression of freedoms. The denial of the ability to participate and not another amounts to the suppression of the Church s religious rights. 12. Furthermore, in Young v. Young (1993), it was shown that state authorities cannot restrict an individual from exercising his freedom of religion to others. In this case, the father of a child could not be restricted from sharing his views, originating out of the Jehovah s Witness religion, with his child. According to Sopinka J., the restriction on religious communication would offend freedom of religion and that the restriction should

8 Page 6 therefore be struck down. 9 On the same principle, state authorities should not be permitted to restrict the religious freedoms of groups such as ORGLE from manifesting their own beliefs in the public context. The Interests of the City of Vancouver and Civil Society 13. It is in the interest of the City of Vancouver, and the wider context of Canadian civil society to uphold the freedom of religion. Intelligent, balanced debate can only occur when groups are allowed to exercise their fundamental beliefs. The goal in a free, democratic and equal society is for citizens to make decisions based on their ability to work out relevant issues for themselves. To do so, citizens must have all reasonable viewpoints on a given issue in order to arrive at a balanced perspective. If the City of Vancouver seeks to enrich the cultural and community life of Vancouver, it must seek to allow all such viewpoints to be heard. The omission of the views of one group, regardless whether it is secular or religious in origin, serves only to compromise the integrity of the judgment of citizens. Following the arguments of John Stuart Mill, citizens must have the liberty to arrive at decisions for themselves, without interference by the state. The only way which citizens can achieve this is through the ability to hear a diverse and varied collection of perspectives. 14. The CCCB aims to hold and manifest its religious beliefs in a non-violent, pacifist manner and by offering an alternative, considered view. It does not seek to harm anyone in doing so, as this would contradict the Church s principles of respect and sensitivity for homosexual persons. This follows within the definition of freedom of religion set forth in Big M Drug Mart, as the Church respects the parallel right of homosexual persons to hold and manifest beliefs which they deem to be appropriate. 9 Young v. Young, (1993) 4 S.C.R.

9 Page 7 Is the infringement of ORGLE s s.2(a) rights justified by s. 1 of the Charter? 15. It is unreasonable that City of Vancouver Guidelines infringe upon the section s.2(a) rights of ORGLE. To eliminate the violation of section s.2(a), the City of Vancouver must respect the constitutional right of individuals or groups to peacefully manifest their religious beliefs without fear of reprisal. The Court should therefore permit ORGLE to fully participate in the Gay Pride Parade without fear of hindrance or diminishment of its beliefs by the City. Same-Sex Marriage as a Social Concern 16. The City of Vancouver s guidelines state that, " the parades must be primarily secular in nature and not promote a particular religious viewpoint." The question of same-sex marriage is not exclusively a religious issue, but a societal issue at heart. The diminishment of a fundamental social institution that forms the basis of the family unit through procreation is a matter which cannot be underestimated, for it is the very society that is at stake. The Court must ask itself, does the promotion of the rights of one group permit the withdrawal of those of another? Analysis of Section 2(b) Violations 16 The exclusion of ORGLE from participation in the Vancouver Gay Pride parade through the discriminatory legislation passed by Vancouver City Council infringes upon the right to free expression guaranteed to all Canadians under the Charter of Rights and Freedoms. 16. Though the Catholic Church disagrees with the lifestyle led by homosexual individuals and consider such conduct to be sinful and morally invalid, we unequivocally support their

10 Page 8 right to express their views. The church recognizes the dignity of all persons and neither defines nor catalogues them according to their sexual orientation. We are all children of God, and the homosexual community is not an exception to this; it has a particular right to pastoral care from the Church, 10 and its rights to free expression should be ensured and upheld as should be the rights of all other Canadian citizens. It is with this in mind that the Canadian Council of Catholic Bishops firmly support the aims of ORGLE and decry the inequity they have been subjected to. Free speech is guaranteed to all Canadians, not just those whose viewpoint one agrees with. Theoretical and Legal Justifications of Freedom of Expression 17. Justifications for freedom of speech and action are enshrined biblically in the words of St. Paul and secularly in decisions of the Supreme Court of Canada. Paul of Tarsus, an early father of the Christian church, enshrined the individual right to freedom of thought and action in his biblical scriptures. According to Romans 14 verse 5, St. Paul believed all should be fully convinced in their own minds, encouraging discussion about which day the Sabbath should be observed on. He further exhorts believers to not let your good be spoken of as evil, in Romans 14:16. By championing open and free discourse about such important matters as religious doctrine and observances, St. Paul established the terms for the fundamental debate about censorship, asking whether any statement is scandalous in itself, or only in the eye of the beholder. He further established that even speech that is sinful in nature should not be suppressed in Romans 3:5-6, noting we can learn from the 10 Canadian Conference of Catholic Bishops. Nov The Church s Teachings on Homosexuality, (Accessed Oct. 27, 2005).

11 Page 9 evil of others and the trespass of one can bring about the grace of many. 11 As representatives of this theological tradition, Catholic Bishops are of the opinion that free expression should be granted to all individuals. 18. Secular authorities have also enumerated justifications of free speech, including the Supreme Court of Canada. According to the Court, protection under section 2(b) of the Charter of Rights and Freedoms is to be granted to all expression that is expressive of something and is not violent in form, encompassing nearly all speech. 12 Drawing upon liberal scholarship and appealing to democratic ideals, the Court laid out three reasons for their broad interpretation of expression rights while handing down judgement in Irwin Toy Ltd. V. Quebec (A.G.): 13 These three reasons are as follows: i) Seeking and attaining the truth is an inherently good activity This justification draws upon the thought of John Stuart Mill s essay On Liberty, in which he argues the suppression of opinion is wrong, because only through the collision of adverse opinions may the truth be found. Celebrated American jurist Oliver Wendell Holmes furthered this line of thinking, arguing that the truth could only be found in a free trade of ideas, where the truth would emerge via the power of thought to get itself accepted in the competition of the market. 14 ii) Participation in social and political decision making is to be fostered and encouraged 11 Durham Peters, John. Courting the Abyss: Free Speech and the Liberal Tradition (Chicago: University of Chicago Press, 2005). 12 MacKay, Wayne. Regulating Freedom of Expression the Canadian Way, in Magnusson and Soberman eds., Canadian Constitutional Dilemmas (Kingston: Institute of Intergovernmental Relations, 1997) Irwin Toy v. Quebec (A.G.) [1989] 1 SCR, Abrams v. United States (1919) 250 U.S Quoted in Hogg, Peter W. Constitutional Law of Canada 1997 Student Edition (Toronto: Carswell Publishing, 1997), 820

12 Page 10 In order to participate fully in a democracy, individuals must be fully informed of political events and ideas. To make an informed decision, knowledge of alternative actions and viewpoints is requisite. The court best expresses this rationale in Switzman v. Ebling, where Rand J. argued parliamentary government demanded the condition of virtually unobstructed access to and diffusion of ideas, 15 and Abbott J. said the right of free expression of opinion and of criticism were essential to the working of a parliamentary government such as ours. 16 iii) Diverse forms of individual self-fulfilment and flourishing are to be cultivated This provision in the Irwin Toy judgement makes clear that just as homosexuals have the right to pursue their aims and goals, no matter how distasteful they may be, so too must ORGLE have that opportunity. Believing that in a free, pluralistic, and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual, 17 the Court enshrines the right of all viewpoints to be heard on an issue, viewing free expression as a vehicle for self and group realization. The very action of exercising one s expressive faculties is seen as intrinsically good by the Court, and a valid justification for ensuring that the speech of an individual or party is not censored by a state organ. Imbalanced application of section 2(b) protections 19. Having demonstrated the various secular and biblical descriptions of the beneficial nature of freedom of expression, we now must ask why this benefit is offered unevenly between 15 Switzman v. Ebling [1957] SCR, Ibid, Irwin Toy, 968

13 Page 11 competing groups. Specifically, why is PRIDE ensured a platform for their opinions, while ORGLE are denied the right to express their deeply held convictions? 20. Mere decades ago, homosexuals were denied the right to speak freely and openly about their viewpoints, or express their character without becoming deeply stigmatized. The Catholic church itself was party to this disgraceful act of shunning gays and lesbians, denying them the Christian fraternity we should demonstrate to all of God s children. As societal perceptions changed, homosexuals were allowed to express views, and have been allowed a greater measure of toleration by the community at large. ORGLE is currently experiencing the same treatment homosexuals were forced to endure, suffering marginalization and societal backlash based solely on their social and political views and mannerisms. 21. This leads us, as Catholic Bishops, to question whether our views are to be subject to suppression by state authorities. Judging from the manner in which the City of Vancouver cavalierly quashed the rights of ORGLE to express their thoughts, one must question whether the church will be similarly persecuted in the future for holding opinions secular authorities do not subscribe to. We must not repeat the mistakes of the past in the future. We cannot expect to maintain a society of equality and tolerance without liberty, as the stifling of expression is self-defeating, ensuring the dominance of the status quo. In Irwin Toy, the Court ruled that expression must be protected from legal regulation and censorship, however unpopular, distasteful, or contrary to the mainstream, 18 it may be. The views of ORGLE on the sinfulness of homosexual activities must be given the

14 Page 12 opportunity of being expressed if this decision of the Court is to be truly respected. The suppression of ORGLE will create a dangerous precedent for the future rights of all Canadians whose opinions may not coincide with the governing majority. Protection of free speech must be applied equally to all, not reserved for a favoured minority. 22. By denying ORGLE the right to participate in the parade, PRIDE has infringed upon the Section 2(b) rights of ORGLE. Furthermore, this violation cannot be justified through application of Section 1 of the Charter. Section 1 provides that the rights guaranteed to all Canadians are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In the 1986 case R. v. Oakes, the Supreme Court laid down a framework to determine whether a limitation on a right was justified by section 1 of the Charter. The Court ruled that in order for a right to be denied, a pressing and important objective must be achieved through that limitation. In determining what consists of a pressing and important objective Dickson C.J. stated the standard must be high in order to ensure that objectives which are trivial or discordant do not gain Section 1 protection. 19 By rejecting ORGLE s request arbitrarily and with little justification, PRIDE did not fulfill a pressing or important objective. They merely followed a capricious course of action, denying participation to a group whom they believed did not fit with the spirit of the parade. By forbidding ORGLE to participate in the parade, PRIDE infringed upon freedoms guaranteed by Section 2(b), and their actions cannot be justified or validated by section 1. As such, their actions should be overturned by the court. 18 Irwin Toy, R. v. Oakes [1986] 1 S.C.R., 103

15 Page 13 ISSUE THREE: Does Orgle s exclusion from the PRIDE parade amount to a violation of the freedom of expression clause of the Charter under section 2(a)? 23. It may be argued before this Court that the Charter does not apply to the activities of PRIDE, as it is a private entity not subject to charter restrictions. However, we argue to the contrary. While Section 32 of the Charter states that its provisions apply only to governmental activities, this Court has ruled in prior decisions that an institutional or structural link to government means that the Charter can pertain to the actions of a body not normally considered a part of government The mayor of Vancouver sits on PRIDE s executive council, and over _ of the parade s budget comes from municipal grants. Police services and other civic support assist the parade. Since the mayor himself is a member of the executive committee which makes decisions regarding who may enter the parade, and is representing the city while doing so, it may not be claimed that PRIDE is a private or independent organization. In Douglas and Kwantlen Faculty Assn. v. Douglas College, this court held that even though the college was a private institution, it was considered to be under government control due to the fact members of its executive committee were appointed by the provincial executive. 21 As such, Charter provisions were made applicable to the College s dealings. If the mere appointment of councillors by the government makes an organization subject to Charter principles, certainly the involvement of an elected official on an executive committee should invoke Charter limitations. 20 Hogg, Douglas and Kwantlen Faculty Association v. Douglas College [1990] 3 SCR, 570. Quoted in Hogg, 673

16 Page 14 ISSUE FOUR: Do the Community Tolerance Guidelines of Vancouver violate the freedom of expression rights under section 2(b) of the Charter? 25 The community tolerance guidelines enacted by Vancouver Council in response to the parade application made by ORGLE are contrary in spirit to the protections afforded by Section 2(b) of the Charter, and cannot be saved by Section 1 justifications. By denying permits and/or financial support to public parades it disagrees with while offering one or both to parades it endorses, the City has run afoul of two principles established by the Supreme Court of Canada. 25. The first of these principles deals with the use of public property for purposes of political and other meaningful expression. In the case of Committee for the Commonwealth of Canada v. Canada, L Heureux-Dubé J. ruled that those areas traditionally associated with, or resembling, sites where all persons have a right to express their views by any means at their disposal, should be vigilantly protected from legislative restrictions on speech. 22 L Heureux-Dubé J. extended this protection to protestors in Dorval airport, noting expression in public thoroughfares such as roads, parks, and airports, deserved special protection from state interference. 23 Access to, and the ability to communicate in public spaces is imperative for the proper functioning of society. Protecting speech is useless unless an individual or group is allowed the opportunity to express their opinions in public where they may be evaluated and acted upon. According to Lamer C.J. in a concurring decision, limiting freedom of expression solely to places owned by the person wishing to communicate would certainly deny the very foundation of freedom of 22 Committee for the Commonwealth of Canada v. Canada [1991] 1 SCR, Commonwealth of Canada v. Canada, 205

17 Page 15 expression, 24 as the dissemination of an idea is most effective when there are a large number of listeners and the economic and social structure of our society is such that the largest number of individuals, or potential listeners, is often to be found in places that are state property, 25 such as parks and roads where parades are held. It is with this in mind that L Heureux-Dubé J. ruled that refusing any form of expression, including parades, on public lands is a violation of section 2(b) of the Charter, and must be justified by section The second principle Vancouver Council s guidelines violates pertains to the financial support given to PRIDE, and the refusal of assistance for ORGLE. The clause in the guidelines which forbids support, to groups council disagrees with is contrary to the rulings in Native Women s Association of Canada v. Canada. Sopinka J. said that though rare in occurrence, sometimes, the provision of a platform or funding to one or several organizations will have the effect of suppressing another s freedom of expression. 27 Though he explicitly notes that the government does not have an absolute obligation to fund an organization supporting an opposite view when it chooses to support a group, Sopinka J. notes that in certain circumstances, positive governmental action may be required in order to make the freedom of expression meaningful Ibid, Ibid, Moon, Richard. The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000), NWAC v. Canada [1994] 3 SCR, 657. Quoted in Moon, NWAC v. Canada, 655. Quoted in Moon, 180

18 Page Trakman similarly argues that by amplifying the right of expression of one group, but not another, the state infracts upon the right of the ignored group to express itself. 29 Policing costs, engineering costs, and other expenses related to the staging of a parade can be prohibitively expensive. By supporting PRIDE and refusing to support ORGLE, the City of Vancouver is effectively muting discourse, favouring one group and allowing them a platform for expression while gagging the other. Can Section 1 of the Charter save the Council Guidelines? 28. Upon applying the Oakes test, 30 it is our submission that the Court should declare this legislation fundamentally flawed. According to the formula in Oakes, a law should be rationally connected to known outcomes, carefully designed to achieve the objective in question and should not be arbitrary, unfair, or based on irrational considerations. 31 The objective of the Council s guidelines is purported to be an expression of support for all events which enrich the community life of Vancouver, except for those which promote hatred or intolerance. No evidence has been offered that ORGLE s speech promotes hatred towards gay and lesbians. Stating behaviour is sinful cannot be considered an expression of hatred; otherwise Sunday sermons would soon be censored and forbidden from touching upon issues of sin and redemption. With this is mind, where is the rational connection between preventing hatred and the banishment of ORGLE from Vancouver s public life? 29. Furthermore, the legislation in question fails to meet the proportionality standards delineated in Oakes. While preventing the condemnation and denigration of a group is a 29 Trakman, L. The Demise of Positive Liberty?, Constitutional Forum (1995):71. Quoted in Moon, See Regina v. Oakes [1986] 1 S.C.R Ibid, 139

19 Page 17 noble task, stifling all public expression which is thought to be distasteful or somewhat hurtful is not a proper method of achieving these goals. The fact that some people s sensibilities may be offended by a group s statements hardly give the government licence to quash a freedom as fundamental as those granted in Section 2(b). 30. Denying ORGLE a platform or the opportunity to make known their views would set a dangerous precedent for future arbitrary government actions. It is hard to see how the exclusion of ORGLE from the PRIDE parade and the legislation created by the Vancouver Council can be allowed to stand if freedom of expression is truly meant to be enjoyed by all. Analysis of Section 15 Violations Definition of the rights of section 15 of the Charter 31. Every individual is equal before and under the law and has the right to the equal protection and equal benefit if the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ISSUE FIVE: Does the rejection of ORGLE s participation of the PRIDE parade amount to a violation the freedom equality rights of section 15 of the Charter? 32. Rejection of ORGLE s participation in the parade amounts to a violation of s.15(1) due to the infringement on their equality rights. 33. A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in

20 Page 18 the protection of benefit accorded by law, but in addition, must show that the legislative impact of the law is discriminatory. 34. Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society Following the Charter s two-step approach to s.15(1), an infringement on not allowing ORGLE to participate in the parade had taken place. Section 15(1) states that every individual is equal under the law regardless of religion. ORGLE was discriminated against due to their beliefs and values under their religious sector. The violation made against the Organization of Reformed Gay and Lesbian Evangelicals was also an infringement which cannot be justified under s The reason s.1 was violated was due to the city of Vancouver s newly minted policy stating that it was the policy of the city to support, within financial reason, all events which added to the cultural and community life of Vancouver. The guidelines set by the Community Tolerance Guidelines state that participants in the parade must not promote a particular religious viewpoint. This blatantly violates s.15(1) of the charter which states that an individual has a right to freedom of religion. Thus ORGLE was denied right in the parade and discriminated against due to their religious beliefs.

21 Page The state had violated s.1 because it took away the rights and freedoms that were justifiable by the law that the city of Vancouver had passed by forming the Community Tolerance Guidelines. Relational Equality 38. Law Commission suggests that sexual relations within a relationship are not relevant to the legitimate state objective; the legitimate state objective being one of regulation designed to facilitate private ordering, given that one relationship is as important to the state interest as another Therefore ORGLE s beliefs should not avert them from entering the parade; according to the Law commission, regardless of sexual relations, a heterosexual relationship is equally important to the state as a homosexual relationship. Thus according to the Law Commission the City of Vancouver should be able to support and fund ORGLE as sexual relations are not relevant to the legitimate state objective. 40. Justice Cory said in the case Egan So long as those [sexual] preferences do not infringe any laws, they should be tolerated Canadian Legal Information Institute s. 15(1) 33 Law Commission of Canada, Beyond Conjugality, Government of Canada, 2001 at xi, xvii, 14-15, 21-22, 34 and 129 to 130 [herinafter beyond Conjugality] ; Halpern Court of Appeal Decision, Supra at paras. 116, , 123,124,129 and 132; see also Maggie Gallagher, Normal Marriage-Two Views in Marriage and Same Sex, Supra at Egan, Supra, at

22 Page ORGLE did not infringe any laws in wanting to participate in the parade. The city of Vancouver and PRIDE infringed s.15 by discriminating ORGLE from participating in the parade due to their beliefs and religion. By proposing the guidelines for the community tolerance, the city infringed the statements laid out in s.15(1). 42. Governments proposed Bill would result in two grave harms: it would eliminate the state s interest in protecting and promoting, for its own benefit, the institution of marriage; and, it would impose an orthodoxy that contravenes freedom of conscience and religion. 35 ISSUE SIX: Do the City of Vancouver Community Tolerance Guidelines violate the freedom of equality rights of section 15 of the Charter? 43. Like the Halpern case, the Tolerance Community guidelines would cause grave harm in association that the orthodoxy represented in the guidelines provided by the city would contravene the freedom of conscience and religion of ORGLE, hence violating s. 15(1) and section 1 of the Charter. 44. What is evil is not the ground of discrimination, but its inappropriate use to deny protection and benefit to people who are members of the marked groups not on the basis of their true abilities or circumstance, but on the basis of the group to which they belong Similar to this case where one party was discriminated against based on the social group they were a part of, ORGLE was discriminated against and denied funds from the city of 35 Halpern et al v. Attorney General of Canada (2003), 65 OR (3d) 161 at para. 53 (Ont. (A.) [herinafter Halpern Court of Appeal Decision] 36 Miron v. Trudel, 1995 CanLll 97 (S.C.C.), [1995] 2 S.C.R. 418

23 Page 21 Vancouver on the basis of the group in which they belonged. Once again the rights of ORGLE were infringed upon. 46. The Roman Catholic Church teaches that homosexual persons must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard must be avoided It is not in the conscience of the Canadian Conference of Catholic Bishops to discriminate against peoples of homosexuality. Nor do the CCCB discriminate against the PRIDE or the beliefs of ORGLE. Under s.15(1) both parties should be represented in the parade because of what s. 15(1) represents in the Canadian constitution. 37 Catechism of the Catholic Church sec. 2358

24 Page 22 PART 4 NATURE OF ORDER SOUGHT The Canadian Conference of Catholic Bishops requests that: (a) (b) ORGLE is granted a permit to participate in the PRIDE parade; or, alternatively, that ORGLE receive funding from the city of Vancouver to host its own parade. the City of Vancouver Community Tolerance Guidelines be revised within one year to promote the expression, religions and equality rights of organizations seeking funding for a parade. ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 8 th day of November, GAVIN CAMERON, SOPHIE CHONG, MADELINE SEPT, and PHILIP WONG

25 Page 23 Abrams v. United States (1919) 250 U.S 616 WORKS CITED Beatty, David. Constitutional Law in Theory and Practice. Toronto: University of Toronto Press, Canadian Conference of Catholic Bishops. Nov The Church s Teachings on Homosexuality, (Accessed Oct. 27, 2005). Canadian Conference of Catholic Bishops official web site. Available at: Charter Decisions, Canadian Charter of Rights Decisions Digest. Canadian Legal Information Institute, Available at Committee for the Commonwealth of Canada v. Canada [1991] 1 SCR Douglas and Kwantlen Faculty Association v. Douglas College [1990] 3 SCR Durham Peters, John. Courting the Abyss: Free Speech and the Liberal Tradition. Chicago: University of Chicago Press, Factum, filed with the Supreme Court of Canada on the Redefinition of Marriage. Canadian Conference of Catholic Bishops, May 2004 Available at: Funston, Bernard W and Meehan, Eugene. Canada s Constitutional Law, 3 rd ed. Toronto: Thomson Carswell Publishing, Hogg, Peter W. Constitutional Law of Canada 1997 Student Edition. Toronto: Carswell Publishing, Hogg, Peter W. Constitutional Law of Canada, fourth student edition. Toronto: Carswell Publishing, Irwin Toy v. Quebec (A.G.) [1989] 1 SCR Native Women s Association of Canada v. Canada [1994] 3 SCR MacKay, Wayne. Regulating Freedom of Expression the Canadian Way, in Magnusson and Soberman eds., Canadian Constitutional Dilemmas. Kingston: Institute of Intergovernmental Relations, Moon, Richard. The Constitutional Protection of Freedom of Expression. Toronto: University of Toronto Press, 2000.

26 Page 24 Regina v. Oakes [1986] 1 S.C.R Switzman v. Ebling [1957] SCR Trakman, L. The Demise of Positive Liberty?, Constitutional Forum (1995):71

27 Page 25 APPENDIX DIVISION OF LABOUR AMONG GROUP MEMBERS GAVIN CAMERON: Analysis of Section 2(b) Violations SOPHIE CHONG: Analysis of Section 15 Violations MADELINE SEPT Compilation, editing and formatting of Factum Court Presentation Philip Wong Analysis of Section 2(a) Violations