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Cultural victories, but ...

International | Canada's high court delivers mixed decisions on euthanasia, child pornography, and religious freedom

Issue: "Schundler's bliss," July 7, 2001

Since January, Canada's Supreme Court has delivered three surprising rulings on religious freedom, child pornography, and euthanasia. In all three cases conservatives had worried that the activist, generally liberal justices would once again rewrite Canadian law; but the decisions were, technically, victories for social conservatives.

The silver clouds contain some dark linings, however. Last month the court ordered the B.C. College of Teachers (BCCT) to license an education program at Trinity Western University in Langley so it could accredit public-school teachers. The BCCT denied the Christian college's 1995 application because the moral code it required students to accept (no homosexual behavior, adultery, or premarital sex) supposedly implied that Trinity would produce teachers intolerant of homosexuality (WORLD, "Northern exposure," Feb. 5, 2000).

Instead, in an 8-1 decision, the Supreme Court pointed out that the boundaries on acceptable belief are broader than the boundaries on action. BCCT presented no evidence of discrimination by Trinity graduates (who have been completing their teacher certification at other institutions). TWU executive vice president Guy Saffold says the decision preserves religious freedom so that "people cannot be arbitrarily penalized or barred from participating in public life simply because they hold religious views." But, points out Derek Rogusky, director of research for Focus on the Family Canada, in effect the court said, "We can't stop people from holding those views about homosexuality, but don't act on them in the public square."

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Would the court have ruled the same way, Mr. Rogusky wonders, if the BCCT had found a gay high-school student whose Trinity-educated teacher had said (no matter how lovingly) that homosexuality is morally wrong, or directed him to a Christian ministry offering "reparative therapy" for gays? Trinity's Mr. Saffold responds that teachers can still act on their beliefs without being discriminatory. Besides, "the public-school classroom is not the place to carry out these battles," he said. But Dallas Miller, a lawyer who presented briefs to the court for Focus on the Family and other pro-family organizations, says that defining what constitutes discrimination in public-school classrooms "may be the next battleground."

In January, the Supreme Court upheld as constitutional a law banning the possession of child pornography. John Robin Sharpe, a retired Vancouver civil servant, was caught with 6,000 photos of nude boys and several pedophilic stories he had written. An appeals court judge in the province of British Columbia had decided that the law banning the possession of child pornography reached beyond what was necessary to protect children and thereby violated his "freedom of expression" and "reasonable expectation of privacy." The Supreme Court upheld the law, but with two exceptions: materials created by the accused and intended for "personal use"; and pictures that do not depict unlawful activity. The age of consent for sexual activity in Canada is 14.

The court's ruling is an attempt to protect the contents of private journals and teens who might record themselves having sex. Three of the nine judges objected to the exceptions, arguing that any connection between free expression and child pornography was "tenuous" and outweighed by the need to protect children.

"Overall, we were pleased with the decision," said Focus on the Family's Mr. Rogusky. The vast majority of child pornography is still banned, but he noted: "For the first time in Canadian history there is an explicit constitutional right to possess child pornography." Legalizing possession of any such material is dangerous, he says, because it could inflame pedophiles to act on their fantasies, and police will find it difficult to prove that a cache of kiddie porn was intended for distribution and not just for private "use."

The only unqualified Supreme Court win for social conservatives this spring was in the case of Robert Latimer. The court upheld a 25-year sentence (with no chance of parole for 10 years) for a man who gassed to death his severely disabled daughter, Tracy (WORLD, "Death on the march," Dec. 20, 1997).

One dark cloud on the horizon: The Canadian Foundation for Children, Youth, and the Law is continuing its tax-funded campaign to ban parental disciplinary spanking. The group wants the courts to strike down Section 43 of the Criminal Code, which allows parents to use "reasonable" force to correct a child (WORLD, "Spoiling a country," Sept. 13, 1997). On Sept. 11 the organization will argue in the Ontario Court of Appeal (one step below the Supreme Court) that Section 43 constitutes "age discrimination" and contravenes the UN Convention on the Rights of the Child. Lawyer Dallas Miller, who will present a brief on behalf of a coalition of pro-family groups, says the effort is a "massive intrusion into the rights of the family."

Les Sillars
Les Sillars

Les directs the journalism program at Patrick Henry College in Purcellville, Va., and is the editor of WORLD's Mailbag section.

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