CARPAY: Charter freedoms of public servants at stake in Newfoundland human rights case

Does government have to respect the fundamental Charterfreedoms of public servants?

This question has been put before the Supreme Court of Newfoundland and Labrador, arising from a dispute between Desirée Dichmont and the province’s Human Rights Commission.

Born in 1926, Desirée Dichmont served as a pilot in World War II, one of a very small number of women to do so. After the War, she spent many years ministering to people on leper colonies in Africa, before moving to Newfoundland, where she was a school teacher and community volunteer.

She received the Queen’s Golden Jubilee Medal, and later the Queen’s Diamond Jubilee Medal for her spirit of service. In December 1997, at the age of 71, she sought and received an appointment as a marriage commissioner.

In 2004, the definition of marriage was changed to include same-sex unions. Based on her beliefs about the meaning, nature and purpose of marriage, Ms. Dichmont was not able to solemnize same-sex weddings.  Considering the large number of marriage commissioners that are available in Newfoundland (and all Canadian provinces) to perform same-sex weddings, the conscience of Ms. Dichmont posed no threat to the availability of this service to same-sex couples.

Nevertheless, the government forced Ms. Dichmont to resign from a very meaningful means of public service in which she took great pride and pleasure, and for which she received only a very modest income.

Governments and other authorities accommodate the special needs of public servants all the time, for example by helping members of the public to find a Punjabi-speaking doctor, or a lawyer who specializes in family law, or a marriage commissioner willing to preside at an outdoor wedding on the shore of a lake.

Even before the age of computers and internet, the public could access different kinds of services from various different providers, understanding that not every professional can provide every service.  Today’s technology makes this easier than ever before. Computer databases and online registries allow service-providers of every kind to inform the public about what they will and will not do, and when and where and how, and so on.

There is no evidence that accommodating Ms. Dichmont would hurt the provision of same-sex marriage ceremonies in the province. The government’s approach, to strip Ms. Dichmont of her license, was driven not by any practical need, but by an ideology of intolerance.

Essentially, the government declared that citizens must agree with the current definition of marriage (it may change again, let’s not forget) or else forfeit the right to serve people as a marriage commissioner. How will this intolerance play itself out when Canada’s progressive courts change the legal definition of marriage to include polygamy? Will marriage commissioners be stripped of their license if they disagree with polygamy and are unwilling to unite three, four or more people into one marriage?

The Human Rights Commission was of no help to Ms. Dichmont.  In court, it supports the position that accommodating Ms. Dichmont’s religious beliefs would cause the government to breach its duty of neutrality.

It’s true that governments must be neutral, by not promoting any one religious or political perspective. Governments can achieve the goal of neutrality without forcibly imposing neutrality on each and every individual public servant. Governments can provide services to the public while still respecting diversity amongst government employees.

As a government authority, the RCMP cannot be for or against any religion.  But individual RCMP officers can adhere to and practice the religion of their choice, including a religion that requires wearing identifiable clothing. The fact that police officers act “as government” nearly all the time does not prevent accommodating Muslim or Sikh police officers’ religious beliefs requiring a hijab or turban.

When a court challenge was brought against turbans in the RCMP, the judge wrote: “In the case of interaction between a member of the public and a police officer wearing a turban, I do not see any compulsion or coercion on the member of the public to participate in, adopt or share the officer’s religious beliefs or practices.”

Sadly, Ms. Dichmont passed away before the legal system would grant her justice. Her Estate now pursues a ruling in court, which will impact the fundamental Charter freedoms of all public servants who are directly or indirectly employed by government.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (JCCF.ca), which intervened in Estate of Desirée Dichmont v. Human Rights Commission of Newfoundland and Labrador.