Religion and Rights: The Illusion of Freedom and the Reality of ControL

Abstract

This paper examines legal guarantees of freedom of religion through the vehicle of rights using a case study of a Jehovah's Witness member in Calgary, Alberta, Canada, who refused to receive blood transfusions prescribed as part of her cancer treatment. The paper examines the pervasive concept of risk of harm that has recently become part of legal discourse in the balancing of rights process. The notion of governance is used to examine the social control of the individual and the deviant population. Aspects of both governmentality and resistance are explored.

Keywords:

• freedom of religion
• rights
• governance
• power

Acknowledgements

Thanks are owed to the Social Sciences and Humanities Research Council of Canada for financial support, to my research assistants Caroline Williams who kept me up to date about developments in the Bethany Hughes case, and to Sheila Oakley who helped with those last minute details and gave the paper her careful editorial eye.

Notes

1. The legal meaning of religious freedom in Canada is constantly shifting, and its interpretation varies from court to court, despite the alleged binding power of precedent. Canadian courts have been rather consistent in holding that religious freedom always includes religious belief. The more contentious ground is that of religious practice. In recent case law the Supreme Court of Canada stated clearly that freedom of religious belief and freedom of religious practice could be clearly distinguished for the purposes of legal analysis. Earlier cases held that freedom of religious belief without freedom of religious practice would render the guarantee of religious freedom an empty right. What is quite clear is that it is religious practices—or religious beliefs in action—that attract the limiting mechanisms of the law.

2. See also Lawson (1995) for the rather complicated history from which this emerged.

3. Section 29 reads: ‘Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools’.

4. B.(R.) v. Children's Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315.

5. The Supreme Court of Canada dismissed the appeal from the Ontario Court of Appeal, which had dismissed the appeal of Sheena B's parents. At p. 317 the Court held that ‘The liberty protected by s.7 of the Charter does not mean unconstrained freedom. Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good.’ The majority of the court determined that the Child Welfare Act's infringement upon parental liberty was made in accordance with the principles of fundamental justice (p. 319).

6. Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519.

7. See Young v. Young [1993] 4 S.C.R., in which an access father's right to take his children door to door to hand out religious pamphlets was supported by the Court, which found that his children had a right to know him for who he is.