Conscience in a free and democratic society

A top Ontario judge hopes to start a conversation about conscience rights among Calgary’s Catholic legal professionals attending this year’s annual Red Mass on Wednesday, Nov 15, 2023. 

“I thought I could use the occasion to say we should be talking a lot more seriously about freedom of conscience if we want to preserve a free and democratic society,” said the Honourable David Brown of the Ontario Court of Appeal.

He will give a talk titled: “Canada’s forgotten freedom? Conscience in a free and democratic society” at a reception following the Red Mass at St. Mary’s Cathedral. The Saint Thomas More Lawyers’ Guild of Calgary hosts the Red Mass as an opportunity for all members of the legal and law enforcement community to pray for the pursuit of justice and mercy at the beginning of the new judicial term and to build community together.

The Red Mass was first celebrated at the Cathedral of Paris in 1245, dates back to 1896 in Canada and re-instituted in Calgary in 2015. It commemorates the martyrdom of St. Thomas More who was executed by order of King Henry VIII for refusing to approve his divorce.

“The Red Mass is important both as a measure of tradition and the bond between the faith and principles that bind us to the Church,” said Tom Ross, Chairman of the Saint Thomas More Lawyers' Guild of Calgary.

“We increasingly live in a secular world. The courts are run on principles that are timeless and it’s important not to forget these principles.”

​Conscience is a very fundamental principle in the pursuit of law and justice. In his discussion on conscience rights, Justice Brown will look at the writings of St. Thomas More and the philosophical development of conscience through the ages. He will reference Section 1 of the Canadian Charter of Rights and Freedoms, which states no right or freedom is absolute but may be subject to reasonable limits. 

“The device the courts have adopted to engage in that inquiry rarely looks into whether the limits on conscience can be justified in a free and democratic society. We’ve adopted a formulaic test known as a proportionality test that doesn’t contain the words free and democratic,” said Justice Brown. 

Justice Brown will draw on the example of legalized euthanasia and medical assistance in dying (MAID) in Canada which gives citizens the freedom to legally end their life under the law. 

“It’s been quite a journey for Canadian law from the Carter vs. Canada decision (in 2015), which thought that it was not opening a door too wide, to a situation where Canada has among the most expansive euthanasia laws in the world,” said Justice Brown.   

Thinking through conscience rights on a practical level, some argue that any government funded employee must set aside their personal conscience and adopt the current understanding of the nature of that public service, Justice Brown explained. 

“All judges are paid for by the government. We are all civil servants,” said Justice Brown. “Does that mean that judges have to put their conscientious beliefs to one side, so you are left with a body of judges who cannot operate with some notion of what is right and what is wrong? I don’t think people have really thought through a denial of conscience rights in certain circumstances.” 

Justice Brown’s own conscience is formed by his Catholic faith. For ongoing formation as a judge, he reads widely about history, philosophy, morality, which he encourages others to do as well. 

As a husband, father of three sons and grandfather of 11 grandchildren, Justice Brown shared three thoughts on living a faithful life in today’s world that he would offer to his own children 

“Common sense would dictate that anyone who wants to try to live in conformity with their particular faith needs to develop a very sound understanding of what their faith consists of. 

“One has to treat others in accordance with that faith…the Christian view of the world espouses regard and respect for all as creatures of God; one has to take that to heart when engaging with all members of the community. 

“And engage with all members of the community. If you are going to live your faith you can’t place yourself under a bushel basket, you’ve got to take the basket off and you’ve got to engage in the world in a way that respects others as created beings.”

All are welcome to join Bishop McGrattan as he offers the Holy Sacrifice of the Mass 5 p.m. on Nov. 15 at St. Mary’s Cathedral. Everyone can purchase tickets for the reception and keynote address in St. Mary’s hall following Mass by contacting [email protected] - or buy ticket(s) online for the reception.

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Written by Sara Francis, and submitted by Saint Thomas More Lawyers’ Guild of Calgary. The Saint Thomas More Lawyers’ Guild of Calgary hosts the Red Mass as an opportunity for all members of the legal and law enforcement community to pray for the pursuit of justice and mercy at the beginning of the new judicial term and to build community together. 

​All are welcome to join Bishop McGrattan as he offers the Holy Sacrifice of the Mass 5 p.m. on Wednesday, Nov. 15 at St. Mary’s Cathedral. Everyone can purchase tickets for the reception and keynote address in St. Mary’s hall following Mass by contacting [email protected].