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Thinking About Law

Although Cardus has been attentive to legal issues for years, this week marks the launch of a formal research program called Cardus Law. Convivium sat down the Executive Director Ray Pennings and program director Andrew Bennett to find out how will seek to raise the bar on public understanding of law in Canada. 

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Topics: Law
Thinking About Law January 11, 2017  |  By Peter Stockland
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Convivium: Why is Cardus launching a research area involving law? What does Cardus have to do  with the law?

Ray Pennings: Cardus Law has been an informal, or what we call a laboratory program, for a couple of years and really, when you think about the mission of Cardus, it's the renewal of social architecture. Obviously, the legal framework within which the institutions of civil society are arranged is very important, as is the relationship between institutional and individual freedom. So it's at the heart of our mission. We really became much more seriously involved a few years ago when the Loyola case was going forward. In part, it was a signature case that overlapped our research area in education and religious freedom and so we had a constituency interest in that.

There’s been a development in law and legal cases in which increasingly it's not just adequate to win in court: you also have to have a strategy to deal with the court of public opinion. And part of Cardus Law is not so much a narrow legal strategy as it is an understanding of the place of law and legal decisions in the broader framework and public conversation.

Convivium: Andrew, your interest obviously is specifically concentrated on, although not exclusive about, religious freedom and conscience. How do you see Cardus Law developing?

Andrew Bennett: I think there's a number of different aspects. Religious freedom is recognized domestically in the Charter of Rights and Freedoms. It is, interestingly enough, the first freedom that is enumerated in Section 2(a) of the Charter, and that's not accidental. I think there's a general understanding, although it might be disputed by some, that religious freedom has a certain foundational character within our society's understanding of our legal roots. The human rights that we actively seek to promote and to advance whether it be freedom of assembly, freedom of association, freedom of speech, are anchored in this core freedom. Again, that can be disputed but a core freedom of freedom of conscience, freedom of religion, whereby the individual who is the bearer of those rights is able to have the freedom they possess as a human being to meet the metaphysical need that we all have. The metaphysical need to understand: Who am I? Who am I in relationship to you? Who am I in relationship to the world in which I live? Who am I in relationship to God, or a particular philosophy I chose to follow?

So from the perspective of Cardus Law, religious freedom is one aspect of the work within Cardus Law. But it's an increasingly important one I think in Canadian society because of things such as the Loyola decision and a number of other cases that are coming forward through the courts, the Trinity Western case for example. Right now, in Canada, there's no sort of organization or research institute that is doing work at a very high level on the intersection between law and religious freedom. There are certainly individual groups and advocacy bodies, whether it's the Evangelical Fellowship of Canada, or the Catholic Civil Rights League, the World Sikh Organization, that are doing wonderful work intervening in cases. But I think there's a growing need to do work on religious freedom as an aspect of our legal framework, as an aspect of our constitutional framework.

So what does it look like? How do we understand Section 2(a) of the Charter? And in the 35 years since the signing of the Charter, how has that fundamental freedom been understood not only by the courts, but also within that court of public opinion? Do we have a different understanding of religious freedom now in Canada than we did 35 years ago, and if so, why? And how do we navigate that? We're increasingly interested in this area within the Cardus Law rubric because it just happens to be that area where we've been called to give voice over the last number of years given these cases.

Convivium:  You touch on something I think it's critically important that we need to be clear about: the seam between other organizations that have been actively engaged in the legal process for a number of years, Christian Legal Fellowship, EFC, Catholic Civil Rights, as you mentioned, and what Cardus is going to attempt to do. It sounds to me you're saying they're complementary but they're not the same.

Ray Pennings: Absolutely. I don't think the space that we are taking up here is space that's currently occupied by anyone. Just to be very practical, we were involved in encouraging the publication of legal research and materials that have been published in books that are citable in the courts. I participated in a conference in Washington that resulted in a paper in a refereed academic journal. Those sorts of publications have become resources for those actively on the front lines in terms of the court. So this is helping along the way, adding some literature to the field from a research and academic perspective, focused on the public, translating some of this into the public sphere to create a broader understanding when courts are increasingly looking to community standards to define what everyone has to pay attention to, influencing and creating an understanding in terms of those community standards.

We organized a couple of years ago a significant conference at Montebello in which we had just over 50 leading lawyers from across the country together. We talked about the issues, not only in the context of narrow litigation issues, although there was some of that conversation, but rather a broader conversation of where the trajectory was heading. So there's a convening function as well that I think Cardus Law can provide.

Convivium: So Cardus' role is as a think tank rather than as an organization active in the cases themselves?

Ray Pennings: We do not anticipate Cardus Law intervening in any cases.

Convivium:  Tell me a little bit about the literature that you refer to, particularly the recent book that launch in the Cardus Ottawa office. What was the purpose of that? What did Cardus hope to achieve with that?

Ray Pennings: The book you're referencing is a LexisNexis publication on religious freedom. It looks at how institutional rights are being defined in law both in terms of religious freedom but also Indigenous rights, which have a communal character. The Supreme Court of Canada, in fact, in December, just heard its first case on indigenous rights that relied on religious freedom ...

Convivium: The Jumbo case... ?

Andrew Bennett: Yes. The Jumbo Valley case.

Ray Pennings: It relied on religious freedom claims as opposed to just Indigenous rights claims. And there's clearly an overlap. I participated at the conference at Georgetown last summer in which we presented a paper, and a series of conversations emerged over dinner between a number of people in which we identified several issues where there’s very little literature to be had, and we helped identify a number of scholars who might be interested in it.

Dwight Newman from the University of Saskatchewan took the lead in being the editor and it went through a refereed process. There's a diversity of perspectives represented in the volume itself. It's not a matter of simply looking to publish stuff that brings forward your point of view. It also looks forward to engaging materials that bring forth other perspectives because if we're going to advance the cause, we can't do so in an echo chamber of simply talking to people who agree with us. It's actually engaging those who disagree. And I think that at Cardus, our approach has been very much contrary to the culture war era in which you have two sides who rally up arms and seek to shoot legal bombs at each other. We have attempted to facilitate dialogue in which those who disagree can seek to understand, looking also for some common ground. That doesn't mean there aren't battles that will have to be sorted through and legal processes will carry that forward. But really, Cardus Law is looking in many ways to be a convening space in which a greater understanding can take place.

Interviewer: Andrew, you chaired the panel discussion at the book launch. Were you surprised by areas of disparity?

Andrew Bennett: I don't think I necessarily saw areas of disparity. I think there was a common understanding that when it comes to litigation, when it comes to the court's interpretation of freedom of religion or conscience, there's this interesting movement towards a recognition that human rights are borne by individuals but - particularly in the case of freedom of religion and conscience - they are exercised collectively. They're exercised in communities. Whether you're Christian, Jewish, Buddhist, Muslim, whatever, you are that within a community and you live in that community. You worship in that community. You exercise your beliefs in public and in private as part of that community, and are informed by that community. So the courts have increasingly come to recognize that. Certainly that's the case with Loyola, and with other litigation that has come before the Supreme Court.

 Speaking about Cardus' convening role, we convened a symposium on religious freedom at Wycliffe College on December 1 and 2 last year, where we brought a number of different voices on this whole question of, how is religious freedom understood to be a fundamental human right? This was actually a great opportunity to show what Cardus Law can accomplish in terms of bringing in new voices, new players who are not familiar with Cardus' role. And we had some academics both from the United States and Canada of different perspectives, some very much on the policy side, some on the legal side, and some on the historical side. We looked at the anthropology of religious freedom. How does religious freedom relate intrinsically to an understanding of human dignity? How have the courts seen that? How have governments seen that? How does the public itself respond to claims that are made of a freedom-of-religion nature?

The particular symposium that we hosted also gave us as Cardus an opportunity to gain greater, I would say, sticky knowledge about some of the key issues right now in the area of religious freedom in Canada and the United States. This ties in with our broader interest in the social architecture of Canada and the U.S., and then also looking at, how do we understand our common life? Because if we are going to have robust religious freedom, if we're going to have a good true pluralism that is grounded upon living a common life together, then we must have robust religious freedom. And that robust religious freedom means asking how people in Canadian society, in North American society, exercise that right? Because I think right now there's a challenge in how they feel they can exercise it. And if that right is not being fully exercised by individuals and individuals within communities, then the public debate is diminished and we don't have a genuine pluralism and a genuine diversity within our society.

 So that's something else we want to explore. It ties in with the broader legal questions because a lot of these questions are being raised through litigation. A lot of these questions are being raised through different cases that are coming before the courts, but they're not solely legal matters. They are fundamentally policy matters and so they dovetail with the law.

Ray Pennings: I think it's very important to contrast what Andrew just described in terms of that robust pluralism in which a flourishing can take place with the reductionist public narrative increasingly in which freedom of religion and conscience is seen as a synonym for freedom of worship. It's not. Freedom of worship ... the right for me to pray or read my sacred text, or to participate in sacred worship but not in public is not the sum and total. To use my own Christian framing, my calling is to love God above all and my neighbour as myself. If you're going to say your faith has nothing to do with how you live alongside and love your neighbour, what you're essentially telling me is that I'm not allowed to be a Christian.

Convivium: It has become apparent recently how out of sync public perception is with what the courts have concretely been doing. If you actually read the judgements - the B.C. Appeal Court decision in Trinity being the latest example, but Loyola and a number of others, you see that disjuncture. Normally, a robust media would mediate that understanding but we now seem to have reached the place where coverage of these kinds of cases produces a mirror image of what most people perceive the place of religion to be in Canadian life. So is Cardus’ communicative role part of saying: "Look, here's the reality we live in?”

Ray Pennings: There is, though it's not just communicative at a popular level. It's also doing the nuts and bolts research to create the narrative. Together with Professor Mary Anne Waldron and James Smith, we have a chapter forthcoming in a Routledge publication that puts the trajectory of Canadian legal decisions among changing understandings of secularism, as Charles Taylor at McGill outlines. The work needs to be done both at the academic level to create that foundation, but then translated into meaning for everyday life. It has real life implications for how we live alongside each other.

Andrew Bennett: I think one of the biggest challenges that we face within Canada at many different levels, in terms of institutional understanding, the understanding of policy makers in particular, is this: What is religion? What is the role of religion? What do Christians believe? What do Muslims believe? What do Jews believe, Why do they believe this? Why do they exercise it the way they do? It's a faith literacy.

It was interesting, in the conversation that we had around the book launch at LexisNexis publication, both Dwight Newman and Carissima Mathen from the Faculty of Law at the University of Ottawa, even though they approach it from fairly different perspectives, both said that one of the biggest challenges is ignorance amongst elites within our country is just that:What is religion? How is religious faith exercised in this country? How does religious faith inform peoples' actions.

There has been this aggressive privatization of any conversation around religion, so much so now that many people that are in policy-making functions or are involved in the legal community or involved in the academic world are just not conversant in the language of faith. And so it becomes hard for them to be able to articulate how one would exercise religious freedom because there's just not that familiarity with vocabulary. So that was something that was highlighted by a number of the academics we've spoken with. They see this themselves.

So I think Cardus also has a role to be somewhat educative about that, and I think the research that needs to be done should be highlighting this question of literacy, literacy around faith. If we're going to say, yes, you can exercise your faith in the public square, well what does that mean? And what's the language that accompanies it?

Convivium: Last question. Obviously Cardus is about more than religious freedom. It has research programs on family, work and economics, social cities, education….Do you see Cardus Law being involved in areas of family law, in economics, in the way cities are structured or law that applies to us as citizens of cities? Will Cardus Law encompass all those areas?

Ray Pennings: We approach Cardus Law with a wide and robust understanding. That said, as with any of our programs, they're much wider than we have the capacity to deliver and we tend to focus on one or two priorities. Clearly, with Andrew leading this project, we start with the area of religious freedom, which is the expertise that we have in-house. That said, among the things that we're looking at even this year is the area of health and institutional freedom of conscience as it relates to medically-assisted dying. Not just the right of individual practitioners, doctors and nurses, but also the right of institutions to form their policies and how that relates. We're looking in terms of the way various codes and diversity codes are inclusive or exclusive. Those are things that are on the horizon as well, as well as the very practical issues as they emerge.

So they will be opportunity driven. We're starting with religious freedom because that's the immediate issue du jour and where we have some expertise, but we envision Cardus Law as a broad, robust program.

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