On October 5th 2012, the Canadian press released news that the Conservative government has decided against renewing part-time prison chaplains’ contracts when they expire next year, on March 2013. Under the argument of saving money, the Conservative move will affect 31 Christian and 18 non-Christian prison chaplains. As a result of the review, the part-time non-Christian prisons chaplains will be terminated and the remaining full-time Christian chaplains in prisons (79 over 80 full-time chaplains accordingly to CBC News) will now provide ecumenical interfaith services and counselling to all inmates, in the same multi-faith model already used in the Canadian Forces.[i]
The Government’s decision has given rise to debate among MPs on Parliament Hill as well in the Media across the country. In the political arena, Liberals and NDP are questioning the Conservatives on its decision to terminate the contracts of non-Christian prison chaplains, and Conservatives, conversely, deny that this move is intended to strike out non-Christian prison chaplains.[ii]
The crucial point here is that this government action disregards the principles of religious freedom and equality before the law; values that are enshrined in the Canadian Charter of Rights and Freedoms (Charter).[iii] Simply put, this move will have an adverse effect on the inmates, denying their fundamental right to religion, and is also contradictory to the government’s own agenda of religious freedom.[iv]
In Syndicat Northcrest c. Amselem (Amselem), the Supreme Court of Canada (SCC) ruled that freedom of religion “[…] consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion […].”[v] Yet, the Conservative initiative will result in inmates from one faith having to obtain religious guidance from an individual practicing a completely different religion and harbouring completely different beliefs and values.
Section 2 (a) of the Charter states that:
2. Fundamental freedoms – Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;[…]
It was established by the SCC in R. v. Edwards Books and Art Ltd. (Edwards Books) that all coercive burdens on religious practice, be they direct or indirect, intentional or unintentional, foreseeable or unforeseeable, are potentially within the ambit of s. 2(a);[vi] In other words, s. 2 (a) of the Charter was held to protect individuals from any hindrance to a religious practice.
It is true that, following the recent judgment of the SCC in Alberta v. Hutterian Brethren of Wilson Colony, not all governmental coercive burdens on religious practice encroach on s. 2 (a) of the Charter. According to the SCC in that case, section 2 (a) of the Charter only protects religious practice against governmental action that has a trivial or insignificant effect on the particular practice..[vii]
However, the scenario envisioned by the Conservatives will have a considerable and substantial impact on the inmates’ religious practice and on the Christian chaplains expected to deliver interfaith guidance. The values that underlie Canadian political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates,[viii] which obviously does not seem to be the case with the proposed government action. Canadian society should expect all inmates – both Christian and non-Christian – to have equal access to their religious counsellors well-versed in their own faith.
Right of equality before the law
Section 15 (1) of the Charter provides that:
15. (1) Equality before and under law and equal protection and benefit of law – Every individual is equal before and under the law and has the right to the equal protection and equal benefit of 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.[…]
In examining this section the SCC has set out a purposive and contextual general approach focused upon three central issues, so s. 15 (1) may operate:[ix]
- i. whether a law imposes differential treatment between one person as regards to others, in purpose or effect;
- ii. whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
- iii. whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
The first issue is concerned with whether the law creates differential treatment, whereas the second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15 (1) of the Charter.[x]
In the present case, from the perspective of non-Christians inmates and of the reasonable person in similar circumstances – taking into account the contextual relevant factors – the governmental action draws a formal distinction between them and Christian inmates on the basis of their faith. Also, the proposed changes subject non-Christian inmates to differential treatment based on their faith as compared to Christian inmates. As such, this differential treatment discriminates against non-Christian inmates by imposing on them a burden in a manner which has the effect of promoting the view that non-Christian inmates are less worthy of recognition or value than Christian inmates.
In general terms, the purpose of s. 15 (1) of the Charter is to prevent violations against essential human dignity and freedom and to promote a society in which all persons enjoy equal recognition at law as human beings.[xi] The proposed change under assessment violates these constitutional principles. It is evident on the basis of judicial notice and logical reasoning that the measure adopted by the government reveals to be discriminatory, within the meaning of the s. 15 (1) of the Charter.
Reasonable limits demonstrably justified in a free and democratic society
The only way by which the government might uphold the legality of its purpose or intent would be through section 1 of the Charter:
1. Rights and freedoms in Canada – The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In order to this happen, the government would have to prove that a limitation on the right of religious freedom and on the equality before the law is reasonable and demonstrably justified in a free and democratic society. To achieve such a result, it would have to establish two components:[xii]
- i. that the objective to be served by the measure limiting these rights must be important to warrant overriding a constitutionally protected right or freedom; and,
- ii. that the measure adopted is proportional reasonable and demonstrably justified.
- a. the measure must be carefully designed to achieve the objective in question, that is it must be rationally connected to the objective;
- b. the measure should impair as little as possible the right or freedom in question; and,
- c. there must be a proportionality between the effects of the measure which is responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance.
Under this second component, three considerations should be taken into account:[xiii]
These financial considerations do not justify the violation of religious freedom and the right of equality before the law. The standard for such a violation must be kept high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection.[xv]
Even in a case where the government action was of such importance, the same government would have to demonstrate that the measure adopted is proportional, reasonable, and demonstrably justified; in other words, that the measure would impair as little as possible the right or freedom in question.[xvi] However, in this case the government decision will deprive a whole class of non-Christian inmates from adequate counselling within their faith, with a trivial objective in order to save less than a million and a half a year. Such a measure is unfair, arbitrary, and not rationally connected to its intended objective. In fact, it strongly impairs religious freedom and the right of equality before the law of non-Christian inmates.
The measure of not renewing part-time prison chaplains’ contracts when they expire next year has a severe deleterious effect over religious freedom and the right of equality before the law, which, by itself does not show proportionality between the effects of the government action and the objectives which have been identified.
Based on the foregoing analysis, it can be concluded that not renewing part-time prison chaplains’ contracts when they expire next year is unconstitutional. The appropriate solution would be for the government to renew part-time prison chaplains’ contracts when they expire next year, providing Christian and non-Christian inmates equal access to their respective religious counsellors who are well-versed in their own faith.
[iii] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[iv] Canada, Public Works and Government Services Canada, Religious Diversity in Canada, Vol. 10, No. 2, (Canada: Policy Research Initiative, 2009).
[v] Syndicat Northcrest v. Amselem,  2 S.C.R. 551, par. 46.
[vi] R. v. Edwards books and Art Ltd.,  2 S.C.R. 713, per Dickson C.J.
[vii][vii] Alberta v. Hutterian Brethren of Wilson Colony,  2 S.C.R. 567, par. 32.
[viii] R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295, par. 123.
[ix] Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, par. 88.
[xii] R. v. Oaks,  1 S.C.R. 103, par. 69 and 70.
[xiii] Id, par. 70.
[xiv] Supra, note 1.
[xv] R. v. Oaks, supra, note 22.
[xvi] R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295, par. 139.