Conscientious Objection in Canada: Pragmatic Accommodation and Principled Adjudication

Abstract

In most religious accommodation cases, an individual or group seeks to be exempted from a law that restricts their religious practice. The accommodation claim, though, has a slightly different form in conscientious objection cases. In these cases, an individual asks to be exempted not from a law that restricts his/her religious practice, but instead from a law that requires him/her to perform an act that he/she regards as immoral. In many of these cases the claimant asks to be excused from performing an act that is not itself “immoral” but that supports or facilitates (what she/he sees as) the immoral action of others, and so makes him/her complicit in this immorality. In recent years, the Canadian courts have dealt with a number of conscientious objection claims and, as in other jurisdictions, the number of these claims seems to be growing. The issue in these conscientious objection cases is not, as the courts sometimes say, the reasonable balance between the individual’s spiritual commitments or interests and the interests or rights of others in the community. The significant issue, in these cases, is whether the religiously-based objection should be viewed as a personal spiritual practice/commitment that should be accommodated, if this can be done without any noticeable harm others, or instead whether it should be viewed as political – as a position, on the rights and interests of other in the community, or on the rightness of the law, that should be subject to the give-and-take of ordinary political decision-making.