One of the things that concerns me about our deliberation is our tendancy to look to the American experience, both in discussing jurisprudence, and it, concerns me a little because I think we are a unique country and our constitution has got to reflect our unique character. We have the built-in advantage, I think at this stage, as some members opposite have pointed out, of amending to some degree our constitution. We have the advantage of one hundred and some years of history, our own history not the American history, and it seems important to me that somehow we balance in this constitution the problems between individual rights and collective rights, such fundamental freedoms of association and religion.

Professor Magnet: But the jurisprudence in the United States to which you refer arises under a constitutional guarantee to nondiscrimination and also to a constitutional guarantee which prevents the establishment of religion. In this proposed resolution there is no antiestablishment clause, and therefore, it simply reflects the Canadian theory which has been true throughout the history of this country that the basic Confederation pact protects certain denominational reasons. Indeed, you might say establishes, but certainly we would not think an antiestablishment clause would be possible in Canada.

Do you think that in Section 2, taking Section 2(b), freedom of thought, belief, and opinion or Section 2(a) freedom of religion, will that protect parties in hospital who have been pressured into assisting an abortion if this is entrenched? Dr. DeVeber: I would hope not. I really cannot answer your question but I would think it is a genuine concern. Miss Campbell: Perhaps you did not quite understand. I was looking for a clause in the Bill of Rights or in the proposal that would allow persons to refuse to assist, and you may have misinterpreted it. Dr. DeVeber: I think that is an excellent idea. I would be in favour of putting that clause in. Miss Campbell: Particularly if Section 1 over-rode any statute. So you could see that freedom of religion perhaps being, or belief that the . . . Dr. DeVeber: I think belief is more important because there are more and more doctors I know who are against abortion on demand, not on religious grounds, but just because they believe it is wrong. So it would be beliefs of any kind. Mr. Cooper: May I make a comment here? When the present Criminal Code, the present abortion law was going through the Justice and Legal Affairs Committee [Page 42] there was an attempt made to insert a conscience clause. Now, the then Minister of Justice, Mr. John Turner, said that this would not be necessary. He could not conceive of any doctor or nurse being required to take part in an abortion. Experience has shown since then that he was dead wrong.

Mr. Black: It seems to me that the value of including freedom of conscience as well as freedom of religion is that it makes clear that people can have very deeply held beliefs that they might not call religious beliefs, but which are equally fundamental to them, and using the phrase “freedom of conscience” it gives them rights as well as people who deeply hold religious beliefs. It seems to me that the possibility that the Supreme Court of Canada or any other court would interpret that in a way which would hinder law enforcement is nonexistent. I cannot imagine the court giving it any such interpretation.

Mr. McGrath: Then how do we avoid getting into the kind of situation which has developed in the United States where, for example, in certain instances, the Lord’s Prayer recited in the classroom has been ruled by the courts to be unconstitutional? I say that as one who comes from a province which has, by law, a denominational system of education which is publicly funded. That law is enshrined in the constitution of Canada by virtue of the terms of union between Newfoundland and [Page 10] Canada, and indeed, is threatened by the provisions of the bill now before us. You have referred to that, though not in a specific way, and I will come back to that later on. Mr. Hammel: But what is the question? Mr. McGrath: The question is: if we are to entrench a Charter of Human Rights in the constitution, how do we avoid the situation whereby the courts of this country will, in fact, be almost in a position of a parallel legislature in terms of defining new laws by the constitution; for example. you could be restricted as to your hiring practices; as to your conduct in the classroom. I have cited the instance in the United States where the recitation of the Lord’s Prayer has, in certain circumstances, been declared unconstitutional. That is a dilemma I find myself in I am very much in favour of fundamental human rights being protected by law, but I have this dilemma. Mr. Hammel: I think whatever approach is taken, whether the statute approach or the Charter of Rights and Freedoms one, I think we simply have to recognize that there are individual rights, and then there are, in our case, organized group rights. In this case, we are dealing with denominational group rights, although, for example, as a Roman Catholic I do not in any way tend to judge anyone’s right to freedom of conscience, I do feel that when he does not abide by what the Roman Catholic religion teaches, then he is no longer a Roman Catholic, and, therefore, does not have the rights of the group. So I think we have to approach it from that particular point of view, that there are certain group rights which are at least equal to, or, perhaps, supreme over some individual rights. I do not think we can simply make it sound as if the individual rights are total.

Mr. Hawkes: There is another conundrum inside your brief, and in contrast to the testimony we had the other day, They wanted to protect the rights of the fetus, your brief clearly says to us: protect the rights of the woman. There is another group involved in the abortion issue and that is medical personnel. Does your association have a position on their right to refuse to participate in any medical procedure, including the procedure of abortion? Dr. Waters: As far as I know, I am just trying to search my memory now, I think the Canadian Medical Association does have a clause in its Code of Ethics that allows physicians to withhold these services in terms of abortion. I do not think any physician can be expected to perform any act that he finds repugnant, and I am quite sure that, again, I am speaking from memory, that the Canadian Medical Association does respect that. Ms. Pelrine: That clause, however, goes on to say that should the physician, because of personal, moral, religious or ethical beliefs, be unable to perform a particular procedure, he or she is obligated to so inform the patient and to refer the patient to another physician who will perform the procedure. I am certainly prepared to accept that Code of the Canadian Medical Association. Mr. Hawkes: Would the freedom of conscience, which is also contained in this charter, be relevant to that issue? Mr. Kellermann: I think that a doctor might argue that he did not want to perform a particular operation or medical treatment of some kind on the basis of freedom of conscience, but that is fine, I do not think that in any way contradicts the position of CARAL, CARAL’s concern is that there be doctors available for the women who want to choose to have an abortion, and as long as that is guaranteed we are not in any way interested in forcing other doctors to involve themselves in that process. They just do not want other doctors standing in the way of women having that right. Ms. Pelrine: And who indeed would want to submit to any medical procedure performed by an unwilling physician?

Mr. Nystrom: My second and last question, Mr. Chairman, concerns another area where l have admired your organization- the whole question of the conscientious objector. You mentioned this morning, if I heard you correctly, two possibilities: one. enshrining in our constitution that no one should be compelled to take human life against one’s conscience, and you also referred to another option, which is in Federal Republic of Germany, that basically you enshrine that it pertains only to military service. I gather that you prefer the first option, which is more sweeping, that one of you mentioned earlier, the possibility of problems concerning policemen in their work, and firefighters in their work, and getting into the whole abortion controversy and euthanasia and so on. You did mention, I believe, two options: that no one should be compelled to take human life against one’s conscience, and the other option being what is enshrined in the German Republic which, I gather, says the same thing but as it pertains only to military service. Mr. Janzen: We would prefer the more general one in regard to taking human life. Mr. Nystrom: If the Committee or the government in its wisdom did not want to be as sweeping, the second would also cover a very important point, would it not? Mr. Janzen: We would be grateful for what there is.

Mr. Epp: Could I ask you, in page 5, taking your position a little further, you argue that the same rights should be extended to persons working in hospitals, people in the medical field. specifically people who because of conscience cannot accept the taking of life through abortion. Do you feel that the clause that you propose would in fact given them that protection they seek? Mr. Janzen: We are not sure about that. As it stands here we say it might have some implications for that concern, and I think it would suggest something in that direction but we are not sure of that and we have not sought a specific legal opinion. It is a concern to us that we recognize that that is not something on which we have complete clarity. Mr. Epp: Do you have practical demonstration of members of your organization. adherents to your organization of churches that form your constituency. that people have been put into that position, namely of performing medical acts which contravene their conscience and specifically their position that they do not have the right to take life in that form? Mr. Janzen: l do not know of specific personnel from our community. I do know that in the 1977 Badgley report there is [Page 51] some rather strong testimony from doctors and so on who werer subject to considerable pressure and that is the reference for it here.

A conscientious objector clause in the Charter might have implications for areas other than military service. People in police work or in medical work sometimes have to face the question of taking human life, too. The areas of euthanasia and abortion are examples but because of technological and other changes the number of areas may increase. In 1969, when the abortion issue was debated in Parliament, along with other amendments to the Criminal Code, it was emphasized that medical personnel would not be forced to be involved with them. Because of this, a conscientious objector clause, which was considered at the time. was viewed as unnecessary, However, the government’s Badgley study of 1977 found that some strong pressures are brought to bear on medical workers. [Page 48] We believe the right to abstain from the taking of human life should be extended in the area of abortion as well.

Mr. W. Janzen (Director General, Ottawa Office, Mennonite Central Committee, Canada): Thank you. This concern is somewhat different than the one which Mr. Nigh has explained. lf that one could be covered with a clause like, “No one shall be compelled against his conscience to take human life,” then the second one might be covered with a simple affirmation of freedom for religion without specifying that it be for individuals or for groups, thus leaving that question to be decided when problems in relation to that arise. As it is worded at the present time in the proposal, it is cast in explicitly individual terms and we are concerned that that might create difficulties which perhaps are not foreseen at the present time or even considered desirable. The written brief refers to several such difficulties and l will not go over that material, but l would say that these difficulties can arise also in relation to communities other than the Amish or Old Order Mennonites or Hutterites which are referred to in the brief. We know that for generations and centuries the phenomenon of people going off unto themselves for religious reasons to live a bit more as a community unto themselves is an experience that has been present in our civilization and probably will be present. and we would like to have that freedom respected. We are a bit concerned that by casting the provision for freedom of religion in individual terms there might be seine difficulties, as explained in the brief. We could go on and talk further about community rights and collective rights and some aspects that relate to the concerns of the native people as well, but I do not think at this point we would want to go into that. I would point out, however, that in a number of other constitutions or bills of rights the provision for freedom of religion is not as individual as it is in the one that is being proposed. I refer to the I960 Canadian Bill of Rights and there is a simple affirmation of freedom for religion without specifying the way it shall apply. The one to which Mr. Nigh has referred also is general on that point. The American constitution, although generally an individualistic document. is general on that point. It does not specify that it is exclusively for individuals and so on. So what we are asking basically is two clauses: one is a clause that would say something to the effect that no one shall be compelled against his conscience to take human life, and the other one would be at simple affirmation of freedom for religion without specifying that it be for individuals or communities, thus leaving that to the wisdom of the legislatures or the courts to deal with those problems as they might arise.

Our spiritual forefathers where the anabaptists of western Europe. Over 400 years ago they felt compelled to take a stand against the taking of human life in any form and to many of them it was contrary to their understanding of the teaching of scripture. For their beliefs and practice they suffered cruelly; many died. When our forefathers came to Canada around 200 years ago they appealed for and were promised exemption from military duty. The history of these negotiations which are very much abbreviated are contained in paragraphs on pages 3 and 4 of the brief which you have had in your hands. In World War I, the severe test of these provisions came. In the spring of I918 the German forces made one last gigantic assault on the Western Front and for a while it looked as if the Allied front would break. It was under the stress and desperation of that time that exemptions which had been written through Order in Council by government were cancelled and the young men of our churches had their faith and their convictions severely tested; many served periods in jail. I had hoped to bring along today a very close friend of mine who was my bishop for many years. Mr. B. J. Swalm who is 84 years of age. but he had other commitments and was not able to come. He could articulate his experiences during this war. One thing I remember, while he served as my bishop in the Niagara Area was that when he was visiting our area he would ask me to drive past St. Catharines Jail where he spent several months during World War I. Bishop Swalm was one of the founders of this organization, the Mennonite Central Committee. The experience in World War II was different and here I can speak from personal experience. because I was of draft age at that time and young men of my age were being called into service. My spiritual training and upbringing, church teachings, taught me participation in war was wrong but I had to make a decision at that time that I had to know what I believed personally and I had to make a personal decision. I went through weeks of study and soul-searching which reinforced my teaching and brought me to the decision that I could not take a human life. or be part of a life-taking organization. Now, in the Second World War, because of early representation to government by the leaders of our churches, an alternative service program was developed whereby our young [Page 47] men could serve in non-military forms of service such as reforestation, road-building, fire-fighting, agricultural work and some in ambulance and hospital work on the front lines. As l came through those years and in perspective I have two strong feelings. First of all I have a deep respect for the boys, for the integrity of the boys who were my friends and are still my friends. who did not feel as I and went into military service. and we today wish to acknowledge our deep respect for those who disagree with us in this area. The second was a great appreciation which I also hold today for a country where conscience is recognized and where opportunity was given for alternative forms of service of national value, and service that was helpful to society. I an thankful for a country where the right to be different is recognized: where a minority view does not endanger or dehumanize. So it is for this reason that we feel now in the formulation of a constitution in peaceful times apart from emotional pressures of a wartime society, that we include a clause in the constitution that would recognize the right of conscience that would lead one to abstain from the taking of human life. We are making this presentation today from our own experience and perspective as stated in the brief. which is prepared by Mr. Janzen and which I have briefly summarized. We believe in light of past experience and differences of interpretation and application of past government decisions that a clear and brief. concise statement in the constitution would be helpful and we urge the inclusion of such in the Canadian Charter of Rights and Freedoms. I might just call your attention to the statement that is written in the constitution of the Federal Republic of Germany; “No one may be compelled against his conscience to render war service involving the use of arms.”

Mr. McGrath: My question is, does Section 2 of the Charter in any way threaten the tax exempt privileges that you now enjoy as a church, in terms of any question that could be placed before the courts; because freedom of religion means freedom not be exposed to religion in certain circumstances, in other words, no religion in terms of interpretation can be construed as a religion, for the purposes of this section. Mr. Smith: Mr. Chairman, it had not occurred to us that this section would in any way threaten our tax exempt status, at least it had not occurred to me, and I do not see any inherent meaning in this. I think along with other sections of the Charter that the possibility for amendment could indeed threaten any of these sections and thereby affect the question before us.

I would invite anyone to define what religion means in a comprehensive manner. I think that that term, while we know that certain religions, Judaism, Christianity, Buddhism are religions, there will be many borderline cases where we do not know if those groups are religions or not. But that has not precluded the drafters of this Charter form including religion.