Brockie v. Brillinger (No. 2)
2002-06-17
Ontario Superior Court
CHRR Doc. 02-119
Scott Brockie and Imaging Excellence Inc.
Appellants
v.
Ray Brillinger, the Canadian Lesbian and Gay Archives and the Ontario Human Rights Commission
Respondents
and
Canadian Civil Liberties Association, Canadian Religious Freedom Alliance and Equality Coalition
Interveners
Date of Decision: June 17, 2002
Before: Ontario Superior Court (Divisional Court), Then, MacKenzie and Cameron JJ.
Appeal from: (sub nom. Brillinger v. Brockie (No. 2)) (1999), 1999 35203 (ON HRT), 37 C.H.R.R. D/12 (Ont. Bd.Inq.)
Court File No.: 179/00
Appearances by: Philip B. McMullen and Iain T. Benson, Counsel for the Appellants David L. Corbett and Karen R. Spector, Counsel for the Respondents Ray Brillinger and C.L.G.A. Jennifer Scott and Jillian Boyd, Counsel for the Respondent Commission Andrew K. Lokan, Counsel for the Intervener Canadian Civil Liberties Association David M. Brown, Counsel for the Intervener Canadian Religious Freedom Alliance Susan Ursel and David Wright, Counsel for the Intervener Equality Coalition
CONSTITUTIONAL LAW — constitutional validity of human rights legislation — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 1 (reasonable limits) and application of Oakes test — s. 2(a) (freedom of conscience and religion) — s. 15(1) (equality)
RELIGION AND CREED — conflict between religious beliefs and other freedoms — FUNDAMENTAL FREEDOMS — freedom of religion — freedom of conscience — balance between freedom of religion and other fundamental freedoms
APPEALS AND JUDICIAL REVIEW — appeal of remedy — error of law in allowing amendment of complaint to add party and in interpreting legislation — BOARDS OF INQUIRY / TRIBUNALS — authority to order added party — INTERPRETATION OF STATUTES — definition of "person"
SEXUAL ORIENTATION — PUBLIC SERVICES AND FACILITIES — public services denied — DISCRIMINATION — bona fide justification — HUMAN RIGHTS — nature and purpose of human rights legislation
Summary: The Ontario Superior Court significantly altered an order of the Ontario Board of Inquiry, which was designed to remedy discrimination based on sexual orientation.
The Board of Inquiry ruled that Scott Brockie and Imaging Excellence discriminated against Ray Brillinger and the Canadian Lesbian and Gay Archives when Brockie refused to print letterhead and business cards for the Archives.
Mr. Brockie argued before the Board of Inquiry that he holds a serious religious belief, based on the Book of Leviticus, that homosexual conduct is sinful, and that he must not assist in the dissemination of information intended to further acceptance of a gay or lesbian "lifestyle". Mr. Brockie contended that his constitutional right to freedom of religion and conscience should protect him from being required to provide a service that conflicts with his religious belief.
The Board of Inquiry concluded that the constitutional right to freedom of religion and conscience does not extend to a corporation, and that it was reasonable to limit Mr. Brockie's freedom of religion and conscience in order to prevent harm to members of the lesbian and gay community and their organizations by the denial of services because of their sexual orientation.
The Board ordered Mr. Brockie and Imaging Excellence to provide the same printing services that they provide to others to lesbians and gay men and to organizations in existence for their benefit. The Board also ordered the respondents to pay $5,000 in damages to the complainants. The Board of Inquiry reasoned that nothing in the remedial order prevented Brockie from continuing to hold and practise his religious beliefs. What Brockie was not free to do, when he entered the public marketplace, was to practise those beliefs in a way that discriminated against lesbians and gay men.
Mr. Brockie appealed, requesting that the Superior Court set aside both the finding that discrimination occurred and the remedial order of the Board.
At the outset, the Court found that the Board of Inquiry had erred by adding the Canadian Lesbian and Gay Archives as a party to the complaint. Subsections 39(2)(a) through (d) permit the addition of another respondent as a party, but not another complainant.
The respondent contended that because the Archives was the proposed purchaser of the services, and because a corporation cannot possess a personal characteristic, such as sexual orientation, the fact that the Board of Inquiry erred when it added the Archives to the complaint should dispose of this appeal. However, the Court rejected this argument. It determined that Mr. Brillinger, as an agent of the Archives, had rights under s. 1 of the Human Rights Code, which prohibits discrimination in services. Mr. Brillinger, the Court reasoned, was refused the services not because of his particular orientation but because of his association with the Archives and the gays and lesbians whom the Archives represents and who are its members.
The Court applied the Charter of Rights and Freedoms with a different result than was reached by the Board of Inquiry. The Court noted the agreement of the parties that the Board's order infringed Mr. Brockie's freedom of religion under s. 2(a) of the Charter. The outstanding question was whether the infringement of his freedom of religion was justified as a reasonable limit in a free and democratic society under s. 1.
The Court found that the order of the Board would extend not just to business cards and letterhead but to brochures or posters with editorial content espousing causes or activities clearly repugnant to the fundamental religious tenets of Mr. Brockie. The Code encourages equality of treatment in the marketplace, but it encourages nothing more, the Court determined. If the order goes beyond this, it may not be rationally connected to the objective of removing discrimination.
The Court found that the order could have been less intrusive while at the same time achieving its objectives. The Court concluded that the Board's order could require Mr. Brockie to provide services that would conflict with the core elements of his religious belief.
The Court amended the Board's order to provide services by adding: "Provided that this order shall not require Mr. Brockie or Imaging Excellence to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed".
The Court affirmed the Board's order in all other respects.
Ed. Note: See also Brockie v. Brillinger (No. 1) (2001), CHRR Doc. 02-161 (Ont. Sup.Ct.).
CASES CITED
Berg v. University of British Columbia, 1993 89 (SCC), [1993] 2 S.C.R. 353, 18 C.H.R.R. D/310: 31
Brockie v. Brillinger (No. 1) (2001), CHRR Doc. 02-161 (Ont. Sup.Ct.): 23
Brockie v. Brillinger (No. 2) (1999), 1999 35203 (ON HRT), 37 C.H.R.R. D/12 (Ont. Bd.Inq.): 12
Brockie v. Brillinger (No. 3) (2000), 2000 20856 (ON HRT), 37 C.H.R.R. D/15 (Ont. Bd.Inq.): 13, 17, 36, 38, 47, 57
Eaton v. Brant (County) Board of Education, 1997 366 (SCC), [1997] 1 S.C.R. 241, 142 D.L.R. (4th) 385: 44
Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513: 31
Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497: 44
MacKay v. Manitoba, 1989 26 (SCC), [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385: 34
R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321: 39, 41, 51
R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200: 45
Ross v. New Brunswick School Dist. No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825, 25 C.H.R.R. D/175: 38, 41
Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, 199 D.L.R. (4th) 1, 39 C.H.R.R. D/357: 42
Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385, 31 C.H.R.R. D/1: 31, 46
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: 13
s. 2: 11, 45
s. 2(a): 40
s. 15: 44, 54
s. 15(1): 44
s. 15(2): 44
British Columbia
Human Rights Code, R.S.B.C. 1996, c. 210, s. 8: 33
Ontario
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109: 2
Human Rights Code, R.S.O. 1990, c. H.19
Preamble: 21
s. 1: 22, 30, 33, 44, 54
s. 9: 22, 24
s. 11(1): 22
s. 12: 22
s. 32(1): 22
s. 33(1): 22
s. 36(1): 22
s. 39(1): 22
s. 39(2): 22
s. 39(3): 22
s. 39(6): 22
s. 41(1): 36
s. 42: 1
s. 45(1): 22
s. 46: 22, 26
Interpretation Act, R.S.O. 1990, c. I.11, s. 29(1): 22
NATURE OF APPEAL
[1] This is an appeal by Scott Brockie ("Mr. Brockie") and Imaging Excellence Inc. ("Imaging") under the Ontario Human Rights Code [R.S.O. 1990, c. H.19] (the "Code") s. 42 to:
(a) set aside orders of a Board of Inquiry chaired by Heather M. MacNaughton ("Board") under the Code s. 41(1) dated February 19, 1999, September 29, 1999, February 24, 2000, based on findings of discrimination under s. 1 of the Code;
(b) substitute different findings and orders, including orders that the Code is unconstitutional; and
(c) set aside an order that requires Mr. Brockie and Imaging to provide printing services to organizations existing for the benefit of gays and lesbians.
NOTICE OF CONSTITUTIONAL QUESTION
[2] The Attorney General of Canada and Attorney General of Ontario were notified of this appeal under s. 109 of the Courts of Justice Act [R.S.O. 1990, c. C.43] and declined to participate in this proceeding.
FACTS
[3] Imaging is a corporation with share capital which carries on business in Toronto as a commercial printer. Mr. Brockie is the president and a directing mind of Imaging. He and members of his family own the shares of Imaging. Mr. Brockie holds a sincere religious belief, based on the Book of Leviticus, Ch. 18, v. 22 and Ch. 20, v. 13, that homosexual conduct is sinful and, in the furtherance of that belief, he must not assist in the dissemination of information intended to spread the acceptance of a gay or lesbian ("homosexual") lifestyle. Mr. Brockie draws a distinction between acting for customers who are homosexual and acting in furtherance of a homosexual lifestyle.
[4] The Canadian and Lesbian Gay Archives ("Archives") is a corporation without share capital registered as a charity with a mandate to acquire, preserve, organize and give public access to publications, information, records and artifacts by and about homosexuals in Canada. It also publicizes homosexuals and their contributions to society to educate the public.
[5] Each of the directors of Archives must be a homosexual. The respondent Ray Brillinger is a gay man and was a director and president of Archives from 1994 to 1997.
[6] In April 1996, Mr. Brillinger, on the recommendation of Archives' graphic designer, attended the offices of Imaging to ask Imaging to print blank letterhead and envelopes for Archives' general correspondence and some business cards for its officers. The copy presented to Imaging contained Archives' new logo and noted that Archives represented interests of "gays" and "lesbians" but said nothing of Archives' objects, activities or membership.
[7] Mr. Brockie, on behalf of Imaging and without inquiring into Archives' activities or membership, refused to provide the requested printing services.
[8] Mr. Brillinger filed a complaint with the Ontario Human Rights Commission (the "Commission") in June 1996. The gist of the complaint was that Mr. Brockie denied him commercial printing services on the basis of his gay sexual orientation, a prohibited ground of discrimination under the Code.
[9] Prior to commencing the hearing of Mr. Brillinger's complaint, the Commission brought a motion in February 1999 to add Archives as a complainant on the basis that although the complaint was clear that the printing services had been sought for Archives, Archives had not been named as a complainant. The Board granted the motion.
[10] The hearing before the Board proceeded in two stages. The first stage dealt with whether an infringement of the Code had occurred and the second stage dealt with remedy.
[11] At the infringement hearing the appellants focused their defence on Mr. Brockie's right to freedom of religion under s. 2 of the Canadian Charter of Rights and Freedoms. They did not assert any other right nor did they argue that the Code was unconstitutional. Accordingly, the evidence before the Board did not address these other matters.
DECISIONS OF THE BOARD
[12] The decision of the Board dated September 29, 1999 [reported 1999 35203 (ON HRT), 37 C.H.R.R. D/12], held that:
(1) Mr. Brockie and Imaging denied the services "because the material clearly referred to gays and lesbians";
(2) Archives was itself identified by a sexual orientation and the refusal was directly discriminatory contrary to s. 1 and s. 9 of the Code;
(3) Mr. Brockie's denial of services was contrary to s. 12 of the Code and constituted discrimination against Archives as a result of its association with its homosexual membership or community;
(4) Mr. Brillinger, as a member and then president of Archives, was indirectly discriminated against when the service was denied to Archives, by operation of s. 12;
(5) Mr. Brillinger was discriminated against directly contrary to s. 1 and 9 of the Code;
(6) Mr. Brockie was the president and a directing mind of Imaging. Imaging was liable for the infringements of both Mr. Brillinger's and Archives' rights under s. 45(1) of the Code.
[13] In its sentencing decision of February 24, 2000 [reported 2000 20856 (ON HRT), 37 C.H.R.R. D/15], the Board considered Mr. Brockie's argument that his Charter right to freedom of religion and conscience prevented the Board from ordering a remedy against either him or Imaging for their breaches of the Code. The Commission and the respondents argued that any infringement of Brockie's right is justified under s. 1 of the Charter and that Imaging as a corporate entity cannot enjoy or exercise the right of freedom of religion and conscience.
[14] The Board accepted the expert contextual evidence. This evidence established the following findings:
Failure to protect the rights of homosexuals from discrimination because of sexual orientation results in a silencing of a part of our society and a marginalization of certain of its members.
There has been a long-standing and social prejudice against, and economic disadvantage of, members of the homosexual community which results in them choosing invisibility and privacy as a means of avoiding the effects of prejudice against them.
Homosexuals continue to suffer discrimination in employment, housing and accommodation, in the education system and in the provision of services.
There continues to be heavy pressure on homosexuals to conceal their identity to avoid experiencing discrimination.
They modify their behaviour to avoid the impact of prejudice.
Concealment of their sexuality has had deleterious psychological and emotional effects on homosexuals.
One implication of limiting the participation of homosexuals in broader society is to create a so-called "separate but equal" regime.
In practice such regimes are separate but unequal.
The minority community always ends up with fewer options in a wide range of activities, with greater limits on their cultural expression and political and social participation.
[15] Mr. Brockie testified that he endeavours to live according to biblical principles which include a belief that homosexuality is detestable and that providing printing services to homosexual organizations would be in direct opposition to his belief. He did however do work for customers who are homosexual and did provide printing services to a commercial organization which produces underwear marketed to the gay male population. He distinguished this from the printing sought by Archives on the basis that Archives was involved in furthering and supporting the homosexual "lifestyle".
[16] The Board concluded that freedom of religion and conscience does not extend to a corporation and that it was reasonable to limit Mr. Brockie's freedom of religion and conscience in order to prevent harm to members of the lesbian and gay community and their organizations by the denial of services because of their sexual orientation. The Board said that freedom of religion does not extend to the practice of religious beliefs in the public marketplace in Ontario in a manner that discriminates against homosexuals and that Mr. Brockie must respect the publicly arrived at community standards embodied in the Code.
[17] On February 24, 2000, the Board ordered Mr. Brockie and Imaging to [p. D/20, § 50–51]:
(a) "provide the printing services that they provide to others, to lesbians and gays and to organizations in existence for their benefit";
(b) "pay damages in the amount of $5,000 to Mr. Brillinger and Archives".
THE ISSUES
[18] Mr. Brillinger complains that Mr. Brockie and Imaging discriminated against him contrary to the Code by denying him commercial printing services because of sexual orientation and so demeaned him and other homosexuals.
[19] Mr. Brockie argues that a person's dignity should not be demeaned by being conscripted to support a cause with which he disagrees because of an honestly held and sincere religious belief. There should be a defence to discrimination based on the bona fides of the reason for the discrimination to permit a right of dissent.
[20] The conflict of dignities presented by this appeal requires a balancing of individual religious rights and individual rights to protection from discrimination in the marketplace based on an analysis of the Code and of the Charter.
SCHEME OF THE CODE
[21] The Code is legislation unique in Ontario in being preceded by a Preamble which recites (in part) that:
... recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
... it is public policy in Ontario to recognize the dignity and work of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.
[22] The following provisions of the Code are material to this appeal:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of ... sexual orientation ...
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member ...
A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
"person", in addition to the extended meaning given it by the Interpretation Act, includes an employment agency, an employers' organization, an unincorporated association, a trade or occupational association, a trade union, a partnership, a municipality ...
The Interpretation Act [R.S.O. 1990, c. I.11], s. 29(1), provides:
29(1) In every Act, unless the context otherwise requires, "person" includes a corporation and the heirs, executors, administrators or other legal representative of a person to whom the context can apply according to law.
Complaints
32(1) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint ...
33(1) Subject to section 34 [not applicable here] the Commission shall investigate a complaint ...
36(1) ... the Commission may refer the subject-matter of the complaint to the board of inquiry.
Hearings
39(1) The board of inquiry shall hold a hearing,
(a) to determine if a right of the complainant under this Act has been infringed;
(b) to determine who infringed the right; and
(c) to decide upon an appropriate order under section 41 ...
(2) The parties to a proceeding before the board of inquiry are,
(a) the Commission ...
(b) the complainant;
(c) any person who the Commission alleges has infringed the right;
(d) any person appearing to the board of inquiry to have infringed the right;
(e) where the complaint is of alleged conduct [not applicable here] ...
(3) A party may be added by the board of inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding ...
(6) A member of the board of inquiry hearing a complaint must not have taken part in any investigation or consideration of the subject-matter of the inquiry before the hearing ...
45(1) For the purposes of this Act ... any act or thing done or omitted to be done in the course of his or her employment by an officer ... of a corporation ... shall be deemed to be an act or thing done or omitted to be done by the corporation ... [Emphasis added.]
PRELIMINARY RULING
[23] We ruled at the beginning of the hearing on December 5, 2001, that the Board had no jurisdiction to add Archives on February 1999, after referral to the Board, for the following reasons:
The Board of Inquiry exceeded its jurisdiction in adding Archive as a complainant. Archive did not fall within the provisions of Ontario Human Rights Code, s. 39(2), paras. (a) to (d). The complaint did not fall within paragraph (e) and so the Board could not add a party under that provision or ss. 39(3).
The Board acknowledged that it had no jurisdiction to do so. Whether or not this was merely to "correct a technical error in drafting" by the intake officer in preparing the complaint document, does not matter. The terms of the statute specifically address the issue of amendment.
The provisions of Board Rules number 5, 12 and 16 must yield to the provisions of the statute. A purposive interpretation of the Ontario Human Rights Code as a quasi-constitutional statute to prevent discrimination cannot override the clear language of the Code on a matter as fundamental as the determination of the patties, as opposed to intervenors, before the tribunal.
We believe that the deletion of Archive is not dispositive of this appeal. Accordingly, the appeal will proceed with such modifications as may be required.
ANALYSIS
Was there discrimination against Mr. Brillinger contrary to section 1 of the Code in the refusal to supply printing services to Archives?
[24] "Person" includes the corporation Imaging. Mr. Brockie is the directing mind of Imaging who made the decision to refuse Imaging's services and so indirectly discriminated. Accordingly, he is a party to any offence by reason of Code s. 9.
[25] Archives was the proposed purchaser of printing services which were denied because of Mr. Brockie's religious belief. The denial was because of Archives' association with the interests of gays and lesbians.
[26] The appellants argue that all the grounds of discrimination in s. 1 are characteristics which can only attach to human beings, and cannot attach to corporations. Accordingly, they suggest that the context requires that the definition of person be limited to humans and that Archives could have no rights under s. 1 of the Code. We disagree. The definition of "person" in s. 46 of the Code specifically refers to "the extended meaning given it by the Interpretation Act" and goes on to include other kinds of organizations of human beings, including some which could be incorporated, either with or without share capital or under special statutes. The word "person" is used many times in the Act without limitation when referring to the object of the discrimination as opposed to the discriminator. In addition, the social purposes of the Code expressed in its terms and its preamble dictate a purposive as opposed to a restrictive definition of "person".
[27] Mr. Brillinger, as an agent of Archives, also had rights under s. 1 by reason of s. 12 of the Code. Mr. Brillinger was refused the services not because of his particular orientation but because of his association with Archives and the gays and lesbians as a group whom Archives represents and who are its members.
[28] It is wrong to impute to s. 1 an implied term that discrimination against Archives, the corporation seeking the services, is the only discrimination which can be complained of. Individuals who are discriminated against because of their human characteristics should not be discouraged from acting in concert by association with others suffering from discrimination to achieve the human worth and dignity to which they are individually entitled under the law. It would unduly limit the remedial purpose of human rights legislation if the court could not "pierce the corporate veil" to find the real sufferers of the discrimination and the grounds which motivate that discrimination.
[29] The appellants seek to distinguish between discrimination because of the presence of or association with a human characteristic referred to in s. 1 per se and discrimination because a person engages in the political act of promoting the causes of those who have such characteristics. We find this distinction specious. Even if Mr. Brockie's refusal was based on his assumption of Archives' objects and political purposes, as opposed to its mere association with people who bear such characteristics, such a distinction defies rational justification. The preamble and scheme of the Code address the dignity and worth of individuals and their right to equal treatment with others in the community without discrimination because of specified human characteristics. The preamble also refers to the need to create a climate of understanding and mutual respect.
[30] Section 1 of the Code addresses the problem of discrimination or denial of equal treatment because of the specified characteristics, not because of the legal character of the bearer of the characteristics.
[31] No authorities have been cited to this Court which would, in the context of the Code and its objectives, preclude the promotion of the reasonable interests of persons who possess the characteristics specified in s. 1 of the Code. The specified characteristics have in common the fact that they have historically constituted a basis for discrimination, exclusion, marginalization and demeaning of people possessing them: Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513 at 600–01 and Vriend v. Alberta(1998), 1998 816 (SCC), 156 D.L.R. (4th) 385 at 546 [31 C.H.R.R. D/1 at D/42] (S.C.C.). A liberal and purposive approach should be used in interpreting and applying human rights legislation in order to advance the broad policy considerations underlying it: Berg v. University of British Columbia, 1993 89 (SCC), [1993] 2 S.C.R. 353 at 370 [18 C.H.R.R. D/310 at D/320]. It is for these reasons that efforts to promote an understanding and respect for those possessing any specified characteristic should not be regarded as separate from the characteristic itself.
[32] The preamble to the Code proclaims public policy in Ontario that the Code should, to a reasonable extent not inconsistent with the rights of others in the community, be given an interpretation which allows remediation of discrimination. This remediation should not be limited to that by the Commission and the Board contemplated under the Code. It should extend to reasonable efforts by persons possessing those characteristics and to the organizations they form to help them achieve the Code's objectives.
Deemed Defence
[33] The appellants challenge the constitutional validity of the Code because it allows no defences based on bona fide reasons. They ask this Court to read into the Code a defence of bona fide and reasonable justification such as exists in s. 8 of the Human Rights Code of British Columbia [R.S.B.C. 1996, c. 210]. Like s. 1 of the Ontario Code, that section prohibits denial of any accommodation, service or facility customarily available to the public because of enumerated personal characteristics, including sexual orientation.
[34] This Court has no power to order such a defence except by a proper application of the Charter. The appellants have led no evidence to provide a factual matrix necessary to challenge an otherwise apparently valid statute duly passed by the Legislative Assembly of Ontario. MacKay v. Manitoba(1989), 1989 26 (SCC), 61 D.L.R. (4th) 385 (S.C.C.).
[35] The Ontario legislature has provided exemptions and defences in respect of the Code's prohibitions of discriminatory conduct in the areas of housing and employment. The legislature has chosen not to provide any defence in respect of the Code's prohibition of discrimination with respect to the supply of services, goods and facilities.
Invalidity of Order
[36] The appellants challenge the Board's exercise of its discretion under s. 41(1) of the Code in ordering Mr. Brockie and Imaging:
to provide the printing services that they provide to others to lesbians and gays and to organizations in existence for their benefit.
[37] Mr. Brockie claims that this order violates:
(a) his fundamental freedom of conscience and religion affirmed in s. 2(a) of the Charter; and
(b) his right under s. 15 of the Charter to equal protection and benefit of the law without discrimination based on religion.
(a) Breach of Fundamental Freedom
[38] In making its order under s. 41 of the Code, the Board must exercise its discretion in a manner consistent with the Charter: Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825 at 850–51, 863, 871 and 886 [25 C.H.R.R. D/175].
[39] Imaging, as a corporate entity, cannot assert a right under the Charter: R. v. Big M Drug Mart Limited (1985), 1985 69 (SCC), 18 D.L.R. (4th) 321 ("Big M"). However, Mr. Brockie's Charter rights must be considered as Imaging is the vehicle through which Mr. Brockie carries on his business.
[40] It is conceded by all parties and two of the interveners that the Board's prospective order infringed Mr. Brockie's freedom of religion under s. 2(a) of the Charter in that it forces him to act in a manner contrary to his religious belief. Equality Coalition takes the position that by reason of Big M, religious freedom does not extend to the commercial arena. Acceptance of that proposition would then resolve the matter in favour of Mr. Brillinger.
[41] The right to freedom of religion includes the right to believe, the right to declare the belief openly by word or in writing and the right to manifest that belief by worship, practice and teaching without coercion or constraint. However, the right is not unlimited. It is subject to such limitations as are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others: Big M at pp. 336–37; Ross v. New Brunswick at p. 868 [D/200, § 72].
[42] The freedom to hold beliefs is broader than the freedom to act on them. The freedom to exercise genuine religious belief does not include the right to interfere with the rights of others: Trinity Western University v. British Columbia College of Teachers(2001), 2001 SCC 31, 199 D.L.R. (4th) 1 at 33 [39 C.H.R.R. D/357 at D/382] (S.C.C.).
[43] If freedom of religion does extend to the commercial arena, the issue becomes one of whether the infringement is justified under s. 1 of the Charter.
(b) Breach of Section 15 Equality Right
[44] The purpose of s. 15(1) of the Charter is to prevent and to remedy discrimination against groups suffering social, political and legal disadvantage in our society by the attribution of stereotypical characteristics to individuals. It is also directed to the amelioration of the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society: Law v. Canada, 1999 675 (SCC), [1999] 1 S.C.R. 497 at § 40–51 and 68; Eaton v. Brant County Board of Education(1997), 1997 366 (SCC), 142 D.L.R. (4th) 385 at § 66 (S.C.C.). The rights given under s. 1 of the Code are consistent with those under s. 15 of the Charter. Indeed the Code can fairly be considered an amelioration law under s. 15(2) of the Charter. However, there is no complaint of discrimination under the Charter so s. 15 is not engaged.
Charter, Section 1 "Oakes" Analysis
[45] In considering whether Mr. Brockie's right to freedom of conscience and religion under s. 2 of the Charter has been unduly limited, we must ask whether the Board's order was beyond the limits of what is reasonable and can be demonstrably justified in a free and democratic society, under s. 1. This requires an application of the test in R. v. Oakes(1986), 1986 46 (SCC), 26 D.L.R. (4th) 200 at 227–28 (S.C.C.):
Is the Board's objective pressing and substantial?
Are the means employed by the Board to achieve its objective proportionate, that is
(a) are they rationally connected to the objective?
(b) does it impair constitutional rights as little as possible?
(c) are its deleterious effects outweighed by its objectives and benefits?
[46] The conflicting Charter values must be placed in their factual and social contexts. Here the social context is the freedom of religion in a free and democratic society and the historical and continuing prejudice against homosexuals resulting in social prejudice and economic disadvantage which can only be avoided by hiding their characteristic from the rest of society: Vriend v. Alberta at § 102 [D/37] and the expert evidence accepted by the Board.
Objective of Board's Order
[47] The objective of the Board's order was to punish the discrimination and to prevent a repetition of it by the appellants and others. The Code's prohibition of discrimination because of sexual orientation reflects the pressing and substantial concern of the issue as determined by the legislature which enacted the Code and established the Commission's mandate. The expert evidence accepted by the Board established that such discrimination continues to exist, that it has the effect of demeaning the self-worth and personal dignity of homosexuals, with adverse psychological effects and social and economic disadvantages. These effects and disadvantages result in modification and restraint of behaviour by homosexuals to conceal their sexual orientation and avoid further discrimination. We find the Board's objective in making the order both pressing and substantial.
Proportionality
(a) Rational Connection
[48] The Board's order was directed to the activity which gave rise to the offensive conduct, namely the provision of printing services for ordinary materials such as letterhead, envelopes and business cards. In this regard, the Board's order was correct.
[49] However, the order would also extend to other materials such as brochures or posters with editorial content espousing causes or activities clearly repugnant to the fundamental religious tenets of the printer. The Code prohibits discrimination arising from denial of services because of certain characteristics of the person requesting the services, thereby encouraging equality of treatment in the marketplace. It encourages nothing more. If the order goes beyond this, the order may cease to be rationally connected to the objective of removing discrimination.
(b) Minimal Impairment
[50] The appellants are engaged in the commercial marketplace by offering their printing services in exchange for payment. The Code's prohibition of discrimination on specified grounds is merely one of the many federal, provincial and municipal laws restraining their conduct in carrying on business with the public and employing people in that activity.
[51] In Big M, supra, Dixon C.J.C. expressed some of the elements of freedom of religion and necessary limits on it. The further the activity is from the core elements of the freedom, the more likely the activity is to impact on others and the less deserving the activity is of protection. Service of the public in a commercial service must be considered at the periphery of activities protected by freedom of religion.
[52] However, as noted, the order could have been less intrusive while at the same time achieving its objectives.
(c) Deleterious Effects vs. Objectives and Benefits
[53] The Code describes values which the people of Ontario, speaking through their legislature, deem worthy of protection. These include the right of homosexuals to participate openly and equally in society, free of discrimination because of their sexual orientation in the supply of goods, services and facilities.
[54] Mr. Brockie's exercise of his right of freedom of religion in the commercial marketplace is, at best, at the fringes of that right. The exercise of his right in this case impacts adversely on the rights of homosexuals in private commercial transactions under s. 1 of the Code to participate fully in the community and the province free of discrimination in the marketplace because of sexual orientation. Their rights are similar to those protected by s. 15 of the Charter from discrimination by the conduct of state actors because of sexual orientation.
[55] Accordingly, limits on Mr. Brockie's right to freedom of religion in the peripheral area of the commercial marketplace are justified where the exercise of that freedom causes harm to others; in the present case, by infringing the Code right to be free from discrimination based on sexual orientation in obtaining commercial services.
[56] The objectives under the anti-discrimination provisions of the Code must be balanced against Mr. Brockie's right to freedom of religion and conscience. A few hypothetical situations may serve to illustrate the tensions between competing rights. If any particular printing project ordered by Mr. Brockie [sic] (or any gay or lesbian person, or organization/entity comprising gay or lesbian persons) contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs, such material might reasonably be held to be in direct conflict with the core elements of Mr. Brockie's religious beliefs. On the other hand, if the particular printing object contained a directory of goods and services that might be of interest to the gay and lesbian community, that material might reasonably be held not to be in direct conflict with the core elements of Mr. Brockie's religious beliefs. These examples are but illustrations of the balancing process that is indicated in this case. There can be no appropriate balance if the protection of one right means the total disregard of another.
CONCLUSION
[57] In the result, we are of the opinion that the impact of the Board's order could be so broad as to extend beyond what is reasonably necessary to assure the rights of Mr. Brillinger and his organization to freedom from discrimination but may require Mr. Brockie to provide services which could strike at the core elements of his religious belief and conscience.
[58] In order to balance the conflicting rights, we would add to the Board's order:
Provided that this order shall not require Mr. Brockie or Imaging Excellence to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.
[59] We affirm the Board's order in all other respects.
[60] Costs may be addressed in writing.