Justice Centre intervenes to defend the Charter freedoms of public servants

Posted on Mar 21, 2019 in Active Cases, Justice Update, Latest Updates

The Justice Centre intervened in the Supreme Court of Newfoundland and Labrador in support of the Charter rights and freedoms of public servants. This 15-year-old Human Rights Commission case questions whether government can force public servants to comply with Government directives that violate public servants’ sincerely-held religious beliefs, regardless of whether the Government could accommodate those beliefs.

At issue is the forced resignation of a distinguished Newfoundland public servant, Desiree Dichmont, from serving as a marriage commissioner, without any accommodation of her sincerely-held religious beliefs that prevented her from performing same-sex marriage ceremonies.

Ms. Dichmont served as a pilot in World War II, and spent years ministering to people on leper colonies in Africa before moving to Newfoundland, where she was a school teacher and community volunteer.  She received the Queen’s Golden and Diamond Jubilee Medals for her spirit of service. Ms. Dichmont sought and received an appointment as a marriage commissioner in December 1997, at 71 years of age.

In 2004, the definition of marriage was changed to include same-sex unions. Based on her beliefs about the meaning, nature and purpose of marriage, Ms. Dichmont was not able to solemnize same-sex weddings.  Considering the large number of marriage commissioners that are available in Newfoundland (and all Canadian provinces) to perform same-sex weddings, the conscience of Ms. Dichmont posed no threat to the availability of this service to same-sex couples. Nevertheless, the government forced Ms. Dichmont to resign from a very meaningful means of public service in which she took great pride and pleasure, and for which she received only a very modest income.

In June of 2005, Ms. Dichmont filed a formal complaint at the Newfoundland and Labrador Human Rights Commission (HRC) claiming discrimination on the basis of religious creed, contrary to section 9 of the then Human Rights Code.  After considerable delay, the HRC dismissed her complaint in 2012, without a hearing, claiming there was insufficient evidence to proceed to a hearing.

Ms. Dichmont sought judicial review of this dismissal in the Supreme Court of Newfoundland and Labrador, which in 2015 ruled that the Commission’s decision was unreasonable.  The Court ordered the Human Rights Commission Board of Inquiry to hear the complaint, which it did in January of 2016.

In May of 2017, the Board dismissed Ms. Dichmont’s complaint, ruling that the government’s duty of neutrality rests on each and every marriage commissioner individually, and therefore the provincial government had no duty to accommodate Ms. Dichmont’s religious beliefs.

Sadly, Ms. Dichmont passed away before the legal system would grant her justice. Her Estate now pursues a ruling in court, which will impact the fundamental Charter freedoms of all public servants who are directly or indirectly employed by government.

The Justice Centre argued that government must follow Canada’s longstanding approach to potential conflicts between freedom of religion and other values, which has been “to respect the individual’s religious belief and accommodate it if at all possible,” as stated by the Supreme Court of Canada in R. v. NS.   In its factum, the Justice Centre illustrated how government is unjustified in infringing the Charter freedoms of public servants, including marriage commissioners, by merely asserting it is doing so to meet a government obligation or public interest, such as the state duty of neutrality.  As the Supreme Court of Canada has explained, “neutrality is required of institutions and the state, not individuals.” Placing government obligations, such as the duty of neutrality, on public servants individually essentially eviscerates their Charter rights.