Brockie v. Brillinger (No. 3)

2000-02-24

Ontario Board of Inquiry

Ray Brillinger and the Canadian Lesbian and Gay Archives Complainants

and

Ontario Human Rights Commission Commission

v.

Scott Brockie and Imaging Excellence Inc. Respondents

Date of Complaint: June 3, 1996

Date of Decision: February 24, 2000

Before: Ontario Board of Inquiry, Heather M. MacNaughton

Decision No.: 00-003-R

Appearances by: Jennifer Scott and Anthony Griffin, Counsel for the Commission Chris Bondy, Counsel for the Complainants Philip B. McMullen, Counsel for the Respondents

DAMAGES — compensation for injury to dignity and self-respect — REMEDIES — cease discriminatory practice — provision of printing services — BOARDS OF INQUIRY / TRIBUNALS — authority to award remedy ordering respondent to cease discriminatory action

CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 1 (reasonable limits) and application of Oakes test — s. 2(a) (freedom of conscience and religion) — CONSTITUTIONAL LAW — constitutional validity of board/ tribunal's powers — FUNDAMENTAL FREEDOMS — freedom of religion — HUMAN RIGHTS — nature and purpose of human rights legislation

Summary: In a decision released in September 1999, an Ontario Board of Inquiry (CHRR Doc. 99-202) ruled that Scott Brockie and Imaging Excellence infringed the rights of Ray Brillinger and the Canadian Lesbian and Gay Archives to be free from discrimination based on sexual orientation by refusing them printing services. This is the Board of Inquiry's decision on remedy.

The Board of Inquiry agreed to sever the issue of remedy and deal with it after determining liability, because the respondents challenged the jurisdiction of the Board to make a remedial order on constitutional grounds. The complainant sought an order requiring the respondents to provide the same printing services to lesbians and gay men, and their organizations, that are provided to others. The complainants also sought $5,000 in general damages.

The respondents argued that a remedial order under the Human Rights Code would breach Brockie's constitutional right to freedom of conscience and religion. Brockie testified that he endeavoured to live his life according to biblical principles and one of those principles is that homosexuality is detestable. Providing printing services to lesbian and gay organizations would be in direct opposition to his beliefs. The respondents argued that no remedial order could be made against them for the breach of the Code.

The Ontario Human Rights Commission and the complainants agreed that imposing a remedial order would infringe Brockie's right to freedom of religion, but contended that such an infringement was justifiable as a reasonable limit on that right under s. 1 of the Canadian Charter of Rights and Freedoms.

The Board of Inquiry noted that in R. v. Big M Drug Mart, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 and in Ross v. New Brunswick School Dist. No. 15 (1996), 1996 CanLII 237 (SCC), 25 C.H.R.R. D/175, the Supreme Court of Canada ruled that 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" (emphasis added).

Applying the Oakes test, the Board of Inquiry determined that the objective of the Code to eliminate discrimination in services on the basis of sexual orientation was a pressing and substantial one, and that the proposed remedial order was rationally connected to the achievement of that objective. The more difficult question was whether the order would impair Brockie's constitutional right as little as possible.

The respondents argued that the refusal to supply printing services was not a refusal to supply a necessity of life and that no real harm had been done. Printing services were available to the complainants elsewhere. By contrast, the order sought would interfere with an essential part of Brockie's life, his religious beliefs. The respondents contended that a refusal of a non-essential service should be permitted where the person refusing is able to demonstrate that he holds a religious belief that prevents him from providing the service.

However, the Board of Inquiry concluded that it was reasonable to limit Brockie's freedom of religion in order to prevent the very real harm caused to lesbians and gay men and their organizations by the denial of services that are available to others. Canadian society has, through the terms of the Ontario Human Rights Code and the Charter, decided to protect its lesbian and gay members from discrimination. Nothing in the remedial order prevents Brockie from continuing to hold and practise his religious beliefs. What Brockie is not free to do, when he enters the public marketplace and offers services to the public, is to practise those beliefs in a way that discriminates against lesbians and gay men by denying them a service that is available to everyone else.

The Board of Inquiry ordered Brockie and Imaging Excellence to provide the printing services that they provide to others to lesbians and gay men and their organizations. The Board of Inquiry also ordered the respondents to pay $5,000 to the complainants for the damage to dignity and self-respect caused by the discrimination.

[Ed. Note: See also (No. 1), 1999), C.H.R.R. NP/99-119 (Ont. Bd.Inq.) and (No. 2) (1999), 1999 CanLII 35203 (ON HRT), 37 C.H.R.R. D/12 (Ont. Bd.Inq.).]

CASES CITED

B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315: 18

Brillinger v. Brockie (No. 2)(1999), 1999 CanLII 35203 (ON HRT), 37 C.H.R.R. D/12 (Ont. Bd.Inq.): 1

Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513: 26, 40

Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, 3 C.H.R.R. D/1163: 25

RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199: 22

R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295: 15, 41

R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103: 20

Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232: 22

Ross v. New Brunswick School Dist. No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, 25 C.H.R.R. D/175: 17, 24

Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493, 31 C.H.R.R. D/1: 26, 40

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11

s. 1: 9

s. 2(a): 14

Alberta

Individual's Rights Protection Act, R.S.A. 1980, c. I-2: 26

Ontario

Human Rights Code, R.S.O. 1990, c. H.19, Preamble: 25

INTRODUCTION

1In a decision released on September 29, 1999 [Brillinger v. Brockie (No. 2), reported 1999 CanLII 35203 (ON HRT), 37 C.H.R.R. D/12], I found that the rights of Ray Brillinger ("Brillinger"), and of the Canadian Lesbian and Gay Archives (the "Archives"), under the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), had been infringed by Scott Brockie ("Brockie") and Imaging Excellence Inc. ("Imaging Excellence"). In particular, I found that Brockie's refusal to provide a printing service to the Archives discriminated against both it, and Brillinger, directly, and by their association with the members of the lesbian and gay community, on the ground of sexual orientation.

2All parties requested that I deal with a remedy for the breach subsequent to my finding of liability because counsel for the respondents had, throughout, challenged my jurisdiction to make a remedial order on constitutional grounds. Specifically, he submitted that a remedial order under the Code would breach Brockie's right to freedom of conscience and religion, a right guaranteed by the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, the "Charter".

THE REMEDY SOUGHT

3Counsel for the Ontario Human Rights Commission ("Commission") seeks an order requiring Brockie and Imaging Excellence to provide to lesbians and gays, and to organizations in existence for the benefit, the printing services that they provide to others. Counsel for the complainants seeks, in addition, damages in the amount of $5,000 for the breach of the Code, and a written apology.

THE EVIDENCE

4Hearing dates were set for the calling of expert constitutional evidence by all of the parties. Pursuant to my order, counsel for the respondents was to serve and file his expert's reports by September 10, 1999, and counsel for the Commission and counsel for the complainants were to respond by October 8, 1999.

5October 25, 26 and 27, 1999, were set for the hearing of the expert evidence. Counsel for the respondents did not file his evidence as required. Despite this failure, both counsel for the Commission and counsel for the complainants filed their evidence. A conference call was held to clarify how the hearing was to proceed, at which time counsel for the respondents indicated, for the first time, that he would not be calling any expert constitutional evidence. Hence, the hearing was scheduled to proceed with the Commission's and complainants' evidence.

6At the outset of the scheduled hearing dates, counsel for the respondents argued, again for the first time, that no constitutional evidence was relevant. In a ruling delivered orally, I allowed the Commission to call its evidence on the basis that it would assist me to balance the competing rights of the complainants against those of the respondents.

7In this regard, I heard evidence from Professor Kathleen Lahey, a law professor at Queen's University, who has published an interdisciplinary text on sexuality. She testified about the social, historical, and legal context of discrimination against lesbians and gays. I also heard from Professor Barry Adam, a sociology professor at the University of Western Ontario, who gave evidence about the impact of discrimination on the lesbian and gay community as a sector of society, and the larger impact of this discrimination on society as a whole. Finally, I heard evidence from Dr. Bruce McLeod, the former Moderator of the United Church of Canada, who testified about the Church's experience in addressing discrimination against lesbians and gays in that Christian community.

THE ISSUES

8Counsel for the respondents, in his Notice of Constitutional Question, and in his argument, does not allege that the provisions of the Code are unconstitutional. Instead, he submits that, due to the acknowledged religious beliefs of Brockie and relying on his Charter right to religious and conscientious freedom, no remedy can be ordered against him, or against Imaging Excellence, for the breach of the Code which I found in my earlier decision.

9Both counsel for the Commission and counsel for the complainants acknowledge that the orders they seek would infringe Brockie's constitutional rights by compelling him to provide a service to members of the lesbian and gay community, and to their organizations. They accept that Brockie believes that such a compulsion would cause him to act against his religious convictions and his understanding of the teachings of the Christian Bible. Both counsel submit, however, that such an infringement is justifiable in a free and democratic society under s. 1 of the Charter.

10All counsel agree that, in deciding the scope of the limitation in s. 1 of the Charter, what I must do is balance the competing rights of Brillinger and the Archives to be free from discrimination based on sexual orientation, and Brockie's freedom of conscience and religion as guaranteed by the Charter.

11The parties disagree about whether a remedy can be ordered against Imaging Excellence. Counsel for the Commission and counsel for the complainants submit that Imaging Excellence, as a corporate entity, cannot have religious beliefs, or a conscience, and hence the constitutional issue does not arise with respect to it.

12Counsel for Imaging Excellence disagrees. He submits that the religious beliefs of Brockie cannot be separated from the corporation of which he is a principal and the directing mind.

13I propose to deal first with the issue of the scope of the individual right to religious and conscientious freedom and the limitation on that freedom that may be appropriate under s. 1. If necessary, I will then deal with the appropriateness of a remedy against Imaging Excellence.

THE CHARTER PROVISIONS

14Freedom of conscience and religion is protected in s. 2(a) of the Charter as follows:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion ...

15The late Chief Justice Dickson, writing for the majority, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 at 336 set out what is meant by freedom of religion:

The essence of the concept of freedom of religion 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.

Freedom is characterized by the absence of compulsion or coercion. One of the goals of section 2(a) of the Charter is to protect individuals against compulsions which violate their religious freedom or their conscience.

16This freedom is not unlimited, however. At p. 337 of R. v. Big M Drug Mart Ltd., supra, Mr. Justice Dickson said:

Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. [Emphasis added.]

17This limitation has recently been repeated by the Supreme Court in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825 [25 C.H.R.R. D/175] where, at p. 868 [D/200, § 72], the Court stated that freedom of religion is "subject to such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others".

18Rather than limiting the scope of the fundamental freedoms in s. 2, the cases require that reconciliation of competing rights and interests be considered under a s. 1 analysis (Ross, supra, and B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315 at 384).

19In the result, freedom of conscience and religion is guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

SECTION 1 ANALYSIS

20All counsel agreed that the test for establishing that a limit is reasonable and demonstrably justified in a free and democratic society was first set out by the Supreme Court of Canada in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. Chief Justice Dickson said at p. 136:

[t]he Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a l[im]it on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

21The Court went on to set out the factors that must be considered in applying the Oakes test. Those factors are:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in the first sense, should impair "as little as possible" the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

22In subsequent decisions, the Supreme Court has said that the Oakes test should be applied flexibly to achieve a balance between individual rights and community needs. Conflicting values must be placed in their factual and social context (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199 and Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232).

23When applying the Oakes test to the circumstances in this case, I am directed to ensure that my order (the infringing measure) employs means to achieve its objective which are proportional, in that they are rationally connected to the objective, and minimally impair Brockie's constitutional rights. Further, the infringement must be outweighed by the objectives and benefits served by the impugned Code provisions. Finally, I must consider whether less intrusive means are available to me.

24Given the special remedial nature of the Code, and its quasi-constitutional status, the s. 1 analysis must also be informed by the need to give the Code its fullest possible effect (Ross, supra).

Is the objective of the Code sufficiently important to override a constitutionally guaranteed right or freedom?

25The special status of the Code as fundamental and quasi-constitutional legislation has been recognized by the Supreme Court of Canada in Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 [3 C.H.R.R. D/1163]. Its stated purpose, as set out in the Preamble, is to recognize "the inherent dignity and worth of every person" and to provide for "equal rights and opportunities without discrimination". Further, it is to create a "climate of understanding and mutual respect for the dignity and worth of each person" so that each feels a part of, and is "able to contribute fully to the development and well being, of the community". In the circumstances of this case, the objective of the Code prohibition against discrimination in the delivery of services, and the objective of the order sought, is to eradicate discrimination on the basis of sexual orientation.

26There is no question that this is a pressing and substantial objective. The Supreme Court of Canada has clearly confirmed in Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, and more recently in Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493 [31 C.H.R.R. D/1], that protection from discrimination because of an individual's sexual orientation is a substantial objective. Vriend involved a challenge to Alberta's Individual's Rights Protection Act, R.S.A. 1980, c. I-2 on the basis that its failure to include sexual orientation as a protected ground was discriminatory. Justices Cory and Iacobucci said at p. 551 [D/37, §§ 101–02]:

The exclusion sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. The effect of that message on gays and lesbians is one whose significance cannot be underestimated. As a practical matter, it tells them that they have no protection from discrimination on the basis of their sexual orientation. Deprived of any legal redress they must accept and live in constant fear of discrimination. These are burdens which are not imposed on heterosexuals.

Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpet[u]ates the view that gays and lesbians are less worthy of protection as individuals in Canada's society. The potential harm to the dignity and perceived worth of gay and lesbian inidviduals constitu[t]es a particularly cruel form of discrimination.

Is the order sought rationally connected to the objective?

27It is clear that the order that is sought is rationally connected to this objective. A declaration that conduct is discriminatory, without an order compelling that the discrimination not be repeated, would not ensure inclusion.

28The more troubling assessment is whether the orders sought would impair Brockie's rights "as little as possible" in proportion to the objective sought to be achieved.

Proportionality and Minimal Impairment

29In assessing this proportionality component, I must attempt to balance the religious rights of Brockie on the one hand, with the equality rights of Brillinger, and members of the Archives, on the other. Further, if the constitutional rights of an individual would be infringed by the remedy sought under the Code, the onus is on the Commission to demonstrate that the infringement is important for the benefit of the community and that the infringement meets the requirements of Oakes.

30Counsel for the respondents submitted that the respondents' refusal to provide the requested printing services was not a refusal to supply a necessity of life and that no true harm had come to the complainants. He argued that there was no harm because printing services were otherwise available to Brillinger and to the Archives. He contrasted what he described as a "disappointment" to the complainants with the proposed interference with an essential part of Brockie's life, his religious beliefs. In this context, he said, the order sought by counsel for the Commission and counsel for the complainants was not the least intrusive measure available, nor would it appropriately balance the interests of the parties involved.

31Counsel for the respondents submitted that I should incorporate into the Code a provision which would allow the refusal of a non-life-essential service on a prohibited ground, if the person refusing was able to demonstrate a clear religious belief that prevented them from providing the service.

Both counsel for the complainants and counsel for the Commission take the opposite view.

THE CONTEXTUAL EVIDENCE

32In balancing the interests of the parties in this case, I was assisted by the contextual evidence given by the experts called jointly by the Commission and the complainants.

33The evidence of Professors Lahey and Adams was clear and uncontroverted; failure to protect the rights of lesbians and gays from discrimination because of sexual orientation results in a silencing of a part of our society and a marginalization of certain of its members. They both gave evidence about the long-standing social prejudice against, and economic disadvantage of, members of the lesbian and gay community. They testified that this has resulted in lesbians and gays choosing invisibility and privacy as a means of avoiding the effects of prejudice against them.

34In particular, Professor Lahey testified that lesbians and gays continue to suffer discrimination in employment, housing and accommodation, in the education system, and in the provision of services. She testified that there continues to be a heavy pressure on lesbians and gays to conceal their identity to avoid experiencing discrimination. She described a "spiral of silence" in which lesbians and gays modify their behaviour to avoid the impact of prejudice.

35Dr. Barry Adam testified that concealment of their sexuality has had deleterious psychological and emotional effects on lesbians and gays. He said that one implication of limiting the participation of lesbians and gays in broader society is to create a so-called "separate but equal" regime. In practice, however, he said such regimes are historically separate but unequal. The minority community always ends up with fewer options in a wide range of activities, and with greater limits on their cultural expression and political and social participation.

36Dr. McLeod testified that the United Church, after a lengthy and divisive debate, declined to introduce a discriminatory practice into its Church policy that would have excluded lesbians and gays from ordination. He said that those in the Church who disagreed with this decision were welcome to remain members of the Church and that the Church respected their right to continue to hold beliefs opposite to those of Church policy. They were not, however, able to impose those opposite beliefs on Church policy, or behaviour, in a manner that would harm lesbians and gays.

37In contrast, the only evidence before me of Brockie's religious beliefs was his own. He testified that he endeavours to live his life according to biblical principles which, he testified, include a stated belief that homosexuality is detestable. He testified that providing printing services to lesbian and gay organizations would be in direct opposition to his beliefs.

38While I did not doubt Brockie's sincerity, it was also apparent from his evidence that he was able to make distinctions which allowed him to provide printing services to other organizations which cater to the lesbian or gay community. For example, he acknowledged that Imaging Excellence provided printing services to a company called Body Body Wear which produces underwear marketed to the gay male population. Although Brockie admitted during his cross-examination that he found Body Body Wear's advertisements equally detestable, he provided the service. He was apparently able to distinguish this from the work sought by the Archives, on the basis that the Archives was involved in furthering and supporting the lesbian and gay "lifestyle".

39I accept the evidence of the experts who testified on behalf of the Commission and the complainants. I further accept that, while great achievements have been made, invisibility of, and discrimination against the lesbian and gay community continues to impact on the ability of lesbians and gays to function fully and openly in contemporary society.

CONCLUSION

40Having considered all of the evidence before me, and in balancing the competing rights, I have concluded that it is reasonable to limit Brockie's freedom of religion in order to prevent the very real harm to members of the lesbian and gay community, and their organizations, by the denial of services because of their sexual orientation. The infringement of the rights of Brockie is warranted in our Canadian society, which has seen fit, through the terms and provisions of the Code, and through the identification of sexual orientation as an analogous ground of protection under the Charter, to protect the rights of its lesbian and gay members from discrimination because of sexual orientation (Egan and Vriend, supra). I conclude that in order to eradicate discrimination by Brockie, I must compel him, and Imaging Excellence, to provide the service they earlier denied. A declaratory order and/or monetary compensation will not achieve this objective.

41In light of my finding against Brockie, it is not necessary for me to consider ordering a separate remedy against Imaging Excellence. I accept the submissions from counsel for the Commission and counsel for the complainants that since R.v. Big M Drug Mart Ltd., supra, it has been decided that freedom of religion is an individual freedom and does not provide a Charter defence to corporations.

42However, considering Imaging Excellence as a separate corporate entity for the purpose of a remedial order is, in my view, too simplistic in this case. Imaging Excellence is a small and closely-held corporation, where the principals are actively involved in the day-to-day business operations. Further, Brockie, who would be required to implement my order, is one and the same as the individual respondent who holds the religious belief. He was able to impose his religious beliefs on Imaging Excellence and to cause it to deny the service to Brillinger and to the Archives. An order against Imaging Excellence would have directly impacted Brockie.

43To accept the arguments of counsel for the respondents that no harm was suffered by Brillinger and the Archives because they were able to obtain the printing service elsewhere, would be to focus on the nature of the service that was denied and to minimize the harm that was experienced. It was clear from the evidence of Brillinger, and of the experts, that the impact of the denial of services went well beyond the actual printing service that was denied and affected the dignity and self-worth of Brillinger and the members of the Archives. Focusing on the "non-essential" nature of the service would not reflect the seriousness of the impact on the complainants of this refusal in the context of historical and continuing discrimination. Such a focus devalues their experience of discrimination and the endeavour the Archives is involved in to allow lesbians and gays to live open and proud lives. As Dr. Robin Brownlie testified during the first phase of these proceedings, "each new incident (of denial) reopens the wound of that discrimination and harm".

44Nor does counsel for the respondents' argument reflect the fact that, while other services are currently available to the lesbian and gay community in Toronto, a large metropolitan center, this will not necessarily be the case in smaller centers. Further, even in Toronto, allowing Brockie to rely on his religious freedom to deny a service could result in an erosion of other services that are currently available to lesbians and gays. The testimony of Dr. Adams was helpful in this area. He testified that, even in large centres, there is nothing to prevent a ripple effect, with increasing numbers of services being denied on the basis of religious freedom, until society is left with fewer and fewer services available to members of marginalized groups. He testified that sanctioning the denial of services in just one instance risks creating a licence to discriminate for all potential providers of services, leaving ever reduced options available to members of our society.

45No less intrusive order would be appropriate.

46While it may be difficult to see any "balance" in an imposition of a penalty against Brockie and Imaging Excellence, in fact nothing in my order will prevent Brockie from continuing to hold, and practise, his religious beliefs. Brockie remains free to hold his religious beliefs and to practise them in his home, and in his Christian community. He is free to espouse those beliefs and to educate others as to them. He remains free to try to persuade elected representatives, through his involvement in the democratic process, that the Code protections currently granted to the lesbian and gay community, are wrong.

47What he is not free to do, when he enters the public marketplace and offers services to the public in Ontario, is to practise those beliefs in a manner that discriminates against lesbians and gays by denying them a service available to everyone else. He must respect the publicly-arrived-at community standards embodied in the Code. My order does not restrict Brockie's right to believe as he does, just the manner in which he may practise those beliefs.

48The evidence of Dr. McLeod gave one example of a Christian community which was able to achieve a balance by allowing members who disagreed with established church policy to continue to hold their beliefs, and respecting their right to do so, while denying them the right to impose those beliefs on church policy.

49Further, providing a commercial printing service does not require Brockie or Imaging Excellence to be a part of the Archives or to associate their name with its activities. The connection between providing the printing services and maintaining and exercising a private belief that homosexuality is "detestable" is extremely remote. Brockie has been able to make these types of distinctions already when Imaging Excellence decided to provide printing services to Body Body Wear.

ORDER

50I therefore order Brockie and Imaging Excellence to provide the printing services that they provide to others, to lesbians and gays and to organizations in existence for their benefit.

51I further order that Brockie and Imaging Excellence pay damages in the amount of $5,000 to Brillinger and the Archives. It is only through an award of damages of this magnitude that I am able to indicate the seriousness of the breach that occurred here. Counsel for the respondents in this case repeatedly referred to the issues in this case as being ones of "political correctness". While it is apparent to me that nothing in this decision will persuade Brockie of the serious impact of his discriminatory act, I am hopeful that others will be informed by it.

52I decline to order Brockie to provide Brillinger and the Archives with an apology because I seriously doubt the effectiveness of such an order in this case.