Brillinger vs. Brockie

1. Brillinger vs. Brockie Charter of Rights and Freedoms and Ontario Human Rights Code Skill Development Activity

2. Citation • Brillinger v. BrockieOntario Board of Inquiry (Human Rights Code) File No.: BI-0179-98Date of Decision: September 29, 1999Date of Issue: February 24, 2000

3. Key Terms • This case focussed on the following key terms relative to Human and Charter Rights: • freedom of religion; • freedom of conscience; • discrimination on the basis of sexual orientation; • Charter of Rights and Freedoms; • human rights codes; • rank ordering of conflicting claims of rights (are some rights more important than others)

4. Summary of Facts • The complainant Ray Brillinger, as president of the Canadian Lesbian and Gay Archives approached the respondents Scott Brockie and his printing company Imaging Excellence Inc. for a quote for the printing of letterhead, envelopes, and business cards for the Archives. • The Archives stated purpose is to "promote [lesbian's and gay men's] acceptance in society" by "providing public access to information, records and artifacts, by and about lesbians and gay men in Canada." • Brockie, who describes himself as "a born-again Christian," refused to provide a quote for the printing job after he was shown the proofs and learned the identity of Brillinger's organization.

5. Summary of Facts Continued • Brockie's evidence was that to provide the printing service to the Archives would be to act against his religious convictions. • Brillinger and the Archives complained to the Ontario Human Rights Commission that Brockie and his company discriminated against them contrary to Ontario Human Rights Code by refusing to provide a service on the grounds of sexual orientation. • Brockie argued that any order compelling him to provide the printing service to the Archives would cause him to act against his religious convictions, and would therefore breach his right to freedom of religion guaranteed by the Charter of Rights and Freedoms

6. Significant Issue • What is the scope of freedom of religion? How far does this freedom go? • When should one person's legal right not to be discriminated against take priority over another person's right to act according to his or her bona fide religious convictions? • What do you think based on the initial facts?

7. Decision • Ms. MacNaughton, the adjudicator for the Ontario Board of Inquiry, decided that Brockie and Imaging Excellence Inc. breached the Ontario Human Rights Code by discriminating against Brillinger and the Archives on the grounds of sexual orientation. • As a remedy, she ordered that Brockie and Imaging Excellence perform printing services requested by lesbian and gay organizations and individuals, and that they pay $5,000 in damages to the complainants. • Ms. MacNaughton further declared that while the order violates Brockie's freedom of religion, the violation is nevertheless justified.

8. Decision continued • Brillinger v. Brockie, a decision of the Ontario Board of Inquiry under the Ontario Human Rights Code, raises the challenging question of how to approach competing claims of sexual orientation discrimination and violation of freedom of religion. • While it is perhaps unusual for a single decision of a human rights tribunal to attract so much critical attention, the issues underlying this case (e.g. the scope of the obligation to treat every person with equal concern and respect and the value of religious practice and belief) are urgent and persistent. • The adjudicator held that she was in fact justified in infringing Brockie's religious freedom by the importance of eradicating the harm of discrimination based on sexual orientation. The denial of the printing services, she held, caused harm not just to Brillinger and the Archives, but to the wider population of lesbians and gay men. • Brockie'srefusal harmed Brillinger psychologically. It harms the wider gay and lesbian community by contributing to prevalent discriminatory practices which, if left unchecked, would create a "ripple effect" whereby increasingly fewer services and opportunities would remain available for lesbians and gay men..

9. Decision continued • Compared to the harm caused to lesbians and gay men by discrimination, the adjudicator found the effects of the violation of the fundamental right of freedom of religion to be slight. • Brockieremains free, she explained, to hold his beliefs and to practice them in his own home and with other members of his Christian community. • He also remains free to express his views politically. He must, however, provide printing services for gays and lesbians and organizations serving them, on the same basis that he provides for others. • This order, she says, does not really impact his religious freedom because, in part, the act of printing is not a public endorsement of the Archives or its purposes.

10. Update: Citation • Ontario Human Rights Commission v. Scott BrockieOntario Superior Court of Justice, Divisional Court, [2002] O.J. No. 2375Date of Decision: June 17, 2002Date of Comment: November 29, 2002

11. Summary of Facts of the Appeal • On appeal, the issues which the Superior Court construed as being raised before it were: • a) whether Mr. Brockie discriminated against Mr. Brillinger by denying him printing services because of sexual orientation and whether doing so demeaned him and other homosexuals; • b) whether Mr. Brockie's dignity was demeaned by being conscripted to support a cause with which he disagrees based upon an honestly held and sincere religious belief and whether there ought to be a defence to an allegation of discrimination based on the bona fide reason for the discrimination so as to permit a right of dissent;

12. Significant Issue • This is an important case for the freedoms of conscience and religion in Canada: the Superior Court has recognized a public space for persons to refuse to provide commercial services if doing so would conflict with the "core elements" of their religious belief or conscience. • Basically the issue is whether or not forcing Brockie to print Gay and Lesbian materials means he is supporting them which violates his core principles of his faith

13. Decision • The appeal court found that Brockie had discriminated against Brillinger as originally decided in the inquiry case • The appeal also found that by printing the materials Brockie was not supporting Gay and Lesbian causes. The printing requested was only letterhead and business oriented material for the Archives and therefore was not supportive • The appeal court found that the precedent is now set that individuals cannot discriminate in services and can only do so if they are supporting a cause in some fashion that violates core principles of their religion

14. Position Paper • Position Paper- see handout • Sample outline for a position paper: • 1. Introduction • A. Introduce the topic • B. Provide background on the topic • C. Assert the thesis (your view of the issue) • 2. Counter Argument • (it always helps your argument to look at the argument the other side will give) • A. Summarize the arguments against your position • B. Provide supporting information for those arguments • C. Rebut those arguments

15. Position Paper Continued… • 3. Your Argument (3 paragraphs) • P1. Assert point #1 of your position • 1. Give your opinion • 2. Provide support • P2. Assert point #2 of your position • 1. Give your opinion • 2. Provide support • P3. Assert point #3 of your position • 1. Give your opinion • 2. Provide support • 4. Conclusion • A. Restate your argument • B. Indicate what the result should be

16. Support • You must provide legal support for your position. This is not an opinion piece. • The research component, that is finding support for your reasons for your position is the hard part to this activity- when you google this case you get a range of bias sources • Be critical, many of the sites are religious in nature and are therefore not the best support to have, as are the sources that are strictly supportive of Gay and Lesbian causes • You will be given a mark out of 5 for the sites you choose to use as sources.

17. Assessment • The rubric attached is a general indication of assessment. Specifically you are assessed for the following reasons: • Knowledge- Proper use of legal terminology, understanding of the significant issues within the argument phases of your paper • Thinking- Are your arguments legal in detail? Have you outlined your position with effective explanation of the issues? Have you chosen the most effective and appropriate sources? • Application: have you followed the position paper format? Have you offered the counter argument in your second paragraph? • Communication: have you cited your sources properly? Is your paper edited and meets most grammar convention requirements?