Ruling on second complainant favours Brockie

On Dec. 5, three days of appeal began in the Ontario Divisional court. Scott Brockie’s lawyers contended with those representing a homosexual man named Ray Brillinger, the Gay and Lesbian Archives and the Human Rights Commission over the right of Brockie, a practising Christian, not to print material he found objectionable.

On April 3, 1996, Brillinger approached Brockie at his place of business, Imaging Excellence, to have a print job quoted. On April 6, Brockie declined to quote on the job to print business cards and letterhead for the Gay and Lesbian Archives. While Brockie has demonstrated respect for those approaching him, he did not wish to assist this project of the Archives. On April 9, a complaint was initiated by Brillinger.

The complaint eventually led to the Human Rights Commission. The Gay and Lesbian Archives were added as a second complainant in February 1999 over the objections of Brockie’s counsel. The HRC heard the case later that year and rendered their decision Feb. 24, 2000. The rights tribunal claimed Brockie was guilty of discrimination and fined him $5,000.

More than 5 1/2 years since the initial approach by Brillinger, Brockie’s argument that he has the right to refuse the work for conscientious reasons of religious faith was heard in the recent appeal.

Brockie’s lawyers argued that: 1. The adding of the Gay and Lesbian Archives was an incorrect procedure and that this organization should be dropped from the complaint. 2. There was no discrimination. 3. Extending Human Rights coverage to the Archives was invalid. 4. Finding discrimination against an organization, the Gay and Lesbian Archives, was contrary to Section 1 of the Charter of Rights and Freedoms. 5. Finding discrimination against Brillinger opposed Section 12 of the Charter.

His lawyers argued that the Gay and Lesbian Archives was not listed as a complainant and that the Board of Inquiry did not have the power to add the Archives. The lawyer for the HRC advised the three judges hearing the appeal that the Commission wanted the most generous interpretation of the law in order to ensure that there was no discrimination involved against any person or organization.

The three Ontario Divisional court judges were intent on ruling on the law and not on an arbitrary addition by the HRC. Judge Cameron summarized their findings: “The Board of Inquiry exceeded its jurisdiction, so the Board could not add a party (as an additional complainant). The Board acknowledged that it had no jurisdiction to do so … We believe that the deletion of the Archives is not dispositive of this appeal.” The appeal resumed on Thursday, Dec. 6.

Brockie’s father told The Interim that the initial argument about the Archives as a complainant – which was decided in Brockie’s favour – would not cause the appeal to be dismissed. He said that the courts have to decide if people of faith have the right to practise their faith in public or whether religion is relegated to the private sphere.

Phil Horgan, a lawyer with the Catholic Civil Rights League, told LifeSite Daily News that the case is “an important test of the balancing principle” of rights in the Canadian Charter of Rights and Freedoms in light of the Supreme Court decision in the Trinity Western case in which the Court decided that no one right trumps another.

The CCRL is part of the Canadian Religious Freedom Alliance, an intervenor in the case on behalf of Brockie (as is the Canadian Civil Liberties Union). Along with the CCRL, the Alliance is comprised of the Christian Legal Fellowship and the Evangelical Fellowship of Canada.

The Divisional Court has reserved its decision, which is expected sometime mid-year.

As for Brockie, he remains humble and with the right perspective. He told The Interim, “This is God’s case. I’m only here on His behalf.”

The Ontario Divisional court reserved its decision.

For related coverage, see the article in the October Interim, “Religious freedom on trial,” by Tony Gosgnach.