The reluctance of the federal government to acknowledge this is a product of a pathological reticence on two grounds. First, a refusal accept any remnants - even one as fixed and permanent as the Charter - of Liberal Canada. The fact that Harper chose to extol the virtues of Diefenbaker's 1960 bill or rights rather than Trudeau's charter speak volumes to this. The Charter is a product of the enemy and thus something to be ignored if it cannot be eliminated. Second, there is a qualitative dimension to this. For Harper and his ilk, the Charter is something to be hated because of its very nature. Unlike Dief's document, which was merely statutory and federal, the Charter is entrenched and largely unalterable. As such, it is difficult to get around. More importantly, the scope of the two is much different. While the bill of rights referred mostly to political and legal rights, the Charter is much more sweeping, including a host of equality provisions. It actively tries to ameliorate disparities based on a host of enumerated grounds - particularly sex - and thus fundamentally alters power balances. This is the reason why right-wing Charter critics - Morton and Knopff, Ian Brodie and the like - have attacked so vociferously the notion of judicial review. What they lament is not the process but the outcomes. Their arguments are largely hypocritical and off-base.
As the thirtieth anniversary of the Charter approaches, the right wing media has already begun to unleash a torrent of anti-Charter rhetoric. For instance, Brian Lilley writes an unthinking tirade accusing progressives of 'bending the Charter'. This is essentially what Lilley and those on the right are doing themselves. Contorting the document to suit their own political ends. Indeed, it is a very selection reading. Lilley triumphantly asserts that, since freedom of religion is listed first in the Charter, it must take precedence. He writes: "In fact, it is the first fundamental freedom that the government is supposed to protect". It is certainly true that these are listed first, but this does not mean that subsequent rights become secondary when questions of 'conscience and religion' come into play. Certainly democratic rights, listed after fundamental freedoms, are no less central. This is a strange argument to make, that ordering in the document makes that much of a difference. Indeed, legal rights are listed after mobility rights, so by Lilley logic these rights take a backseat.
One of the problems the courts deal with often in Charter cases is weighing competing rights. This is a delicate operation and a thin line, particularly as cowardly legislatures refuse to broach contentious issues, leaving the courts in the precarious position of weighing public policy options. They are acutely aware of this problematic aspect of the law. What critics on the right, in touted the supremacy of Section 2(a), ignore is the reciprocal claims of others to these very same rights. In claiming section 2 for themselves, the right is attempting to deny this to others. Moreover, they mistakenly assume that religious thought is the paramount right (ignore that religion itself follows conscience in general). They cannot explain how their rights trump the claims of others and, indeed, why others should be relegated to silence.
More troubling, however, is there complete and utter ignorance of other Charter provisions. Most notable here is the omission of section 1, which states that all rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Instead, proponents cherry pick their favourite sections and read into them a more absolutist (and American) conceptualization of rights as immutable and absolutely inviolable. They ignore the sections of the Charter they disdain - particularly the equality provisions in section 15 - and latch on to those they approve of. More troublesomely, they attempt to deny rights to others by erecting an artificial hierarchy of rights which does not exist. In Canada rights are balanced, not ranked.
Beyond this, critics also misunderstand the purpose of the Charter. The document sets out the relationship between the government and its citizens, proscribing the limits of what is justifiable intrusion for the state. Importantly, however, the Charter was intended also to be a bulwark protecting minorities against the excesses of majority rule. The notion was that rights could be maintained regardless of majority opinion on the matter. As such, the Charter has been largely used to expand rights rather than limit them. This is an aspect that critics do not understand.
On the one hand, critics like Lilley extol their own rights to be treated justly by the state. On the other, however, they deny this to others. In the case of so-called 'conscience rights', they ignore the state's reciprocal responsibities under section 15 to treat all citizens equitably.
15(1) Every individual is equal before and under the law and has the rights to equal protection and equal benefit without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical ability
In the provision of public goods, including marriage licenses, the state has a duty to treat all citizens equally. As such, public employees those same duties. To allow some individuals to neglect their duty based upon some so-called religious belief goes beyond the pale of reasonable accommodation.
Demands for accommodation based on 'conscience rights' is little more than a wrong-headed to sanction and justify homophobia. Indeed, homophobia remains the last publicly defensible forms of bigotry that is tolerated by society. It stretches credulity to cite religion as an excuse to justify inequitable treatment by the state. A simple thought experiment illustrates this. Take for instance an individual who refuses to execute her job fully by issuing a marriage license to a same-sex couple on that grounds that it runs contra to her beliefs as a Catholic. Now, replace that gay couple with any number of pairings: an interracial couple, individuals from another faith or two handicapped Canadians. Refusing to discharge one's duties on these grounds would be met with ridicule and would not be accommodated. When it comes to the rights of gay and lesbians, playing the religion card is still accepted by many as an excuse to recognize the rights of others.
Take another scenario. Part of the logic of 'conscience rights' is that the public sphere should conform itself to suit the "section 2" rights of religious individuals (notice, they're predominantly Christians). This is part of the logic also of the argument against marriage equality: that the existence of someone contrary to one's beliefs in someway impedes the exercise of those rights. So, in the case of marriage equality, a lesbian couple's nuptials is an active detriment inhibiting the religious rights of a Catholic family. It's an asinine argument, yet it has a great deal of weight with many. Now take the argument to its extreme. Nothing runs contrary to the beliefs of Catholics like Islam. Following the anti-gay rationale, the state should ban the practice of Islam because it runs contrary to the teachings of the Vatican. Indeed, the Protestant church (those heretics!) would need to be silenced as well. Majority rule means the dominant religion in Canada - Catholicism - takes precedence. Again, the argument is asinine in every context except in relation to homosexuality. Something about homophobic bigotry has a strange effect on rational thought.
Claims to 'conscience rights' are little more than a demand that an individual's homophobia be recognized and respected by others and the state. It colonizes the public sphere in the name of religion and attempts to force sexuality back into the closet, into the private realm. Somehow there is a right to religious expression in public, yet when it comes to the expression of sexuality in public - itself an exercise of freedom of conscience that, by Lilley logic, supersedes religious freedom - section 2 need not apply. The whole argument demonstrates a profound ignorance about how the Charter operates or it's larger goals. Right wing (largely religious) arguments attempt to maximize their own claims to rights while denying them to others. They see their own rights as inalienable and immutable, yet the same claims by others as subject review. Moreover, they ignore the overriding imperative of the Charter to protect minority rights - of language, religion, gender and (thanks to the courts) sexuality - instead assuming that majority rule dictates the provision of rights. The religious right certainly has a claim to freedom of conscience and religion, of thought, belief, opinion and expression. What they don't have is a right to force their view of the world on the state or on others. Section 2, after all, comes after Section 1.