The Canadian Union of Public Employees (CUPE) held their national convention this week in Toronto. But the headlines were more focused on CUPE’s support for protestors at the University of Toronto, who were calling for intifada and advocating for the erasure of Israel from the world map. These protests had notable supporters: the national head of CUPE, Fred Hahn, and the Ayotolla Khomeni, the radical Muslim cleric, who is the supreme authority of Iran’s thuggish theocracy. CUPE’s support for a radical Islamic movement totally at odds with its ostensible responsibility to care for its Canadian members, including Jewish early childhood educators, is just the latest provocation of Canadian workers who may wonder why their union dues are being spent to provide public relations support for authorities, which would burn the conscious of any normal human being.

In the wake of the atrocities committed in Israel, a number of unions in Canada shocked their membership and the public by making statements supportive of “resistance” which was interpreted as support for Hamas. Since that time, unions have doubled down in their support of protests in which anti-Semitism has become the norm, and revelations of internal, structural, anti- semitism in public sector unions have surfaced. Because of this, a number of union members of those unions noted that they wished to redirect their dues to a charity of their choice.

One member, Carrie Silverberg, writing for Newsweek about a suit that was launched against her union at the Ontario Human Rights Council, said “We want damages for the pain and suffering CUPE has caused us. We want to re-direct our union dues to a Jewish charity of our choice.”

Many agreed with her and her colleagues. They recognized that the consciences of these workers were harmed by their union, and believed that there should be some legislative way to meaningfully protect the consciences of those workers.

However, most do not know that provincial and federal labour law, and the case law which supports it, does not provide any access to such a remedy. Instead, they have to resort to hiring a lawyer and taking it up with human rights tribunals.

It’s time for that to change. It’s time for a recognition and expansion, of conscience rights within Canadian labour law that is attuned to the sociological realities of our current day, which provides meaningful and actionable means for Canadian workers to exercise their constitutionally protected freedom of conscience, and does so in a way that does not unduly hinder the equally protected constitutional right to association as it’s exercised through the forming of trade unions and workers’ associations.

Section 2a of Canada’s Charter of Rights and Freedoms states that everyone has the freedom of conscience and religion as a fundamental freedom.

Provincial and federal labour law do contain clauses which allow for trade union members, even those in closed shops, to cease to become union members on the basis of this freedom. Here are just a few examples:

 Canada’s Labour Relations Code – Sec 70(2-4) – https://laws-lois.justice.gc.ca/eng/acts/l- 2/page-9.html#h-340488

 BC Labour Relations Code Sec. 17 – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96244_01#section17

 Ontario Labour Relations Act – Sec. 52 – https://www.ontario.ca/laws/statute/95l01#BK63

 Nova Scotia Trade Union Act – no explicit law https://www.canlii.org/en/ns/laws/stat/rsns- 1989-c-475/latest/rsns-1989-c-475.html

While these laws appear to provide adequate and broad protection of religious freedom, in fact, these laws have been interpreted by tribunals in such a highly restrictive way that both vast swathes of religious people – indeed whole religious groups – are precluded from exercising their rights, and those who claim no religious connection have no viable means for exercising their conscience rights. Most labour laws provide no basis for meaningful exercise of freedom of religion or conscience.

Currently the bar for religious exemptions is quite high, and the bar for conscientious objections is non-existent. On the religious front, the guidance from Alberta’s Labour Relations Board provides an example of the test used by labour boards/tribunals across the country to determine whether or not a member passes the test:

The applicant’s beliefs and objections must be sincere… [They must also be religious.] “Religious” means the beliefs must relate to the divine, or mankind’s perceived relationship to the divine, as opposed to earthly institutions. A religious conviction or belief involves the human recognition of some higher or unseen power as having control of human destiny, and as being entitled to obedience, reverence and worship. The views must be religious as opposed to being moral, social or political views.

The objection must be tied into the religious beliefs. The objections may emanate from several causes. The religious cause must predominate for the objection to succeed. The religious objection must also go to the fundamental aspects of union membership or financial support, not just incidental aspects of union affiliation. This arises most frequently when a union supports or contributes to a cause to which the applicant objects, even though they do not object to the union itself.

What is clear from this test – which, again, is a precis of the test used throughout the country – is that it a. Places an extremely high bar for members’ exercise of religious freedom rights. It restricts objections to unions per se, not the actions, constitutions, or words of any particular union, even though they may be objectionable and harmful of the workers’ religious conscience. For clarity, the largest religious groups in the country – all Roman Catholics, most Jews, Muslims, Sikhs, and most other Christian denominations – do not meet this test.

b. Does not provide any protection of a workers’ freedom of conscience, as opposed to their freedom of religion. Many workers whose consciences might be harmed by membership in a trade union, but who are not religious, simply have no clear means of exemption, as persons, to their union.

Why does this matter? First, any law intended to protect religious freedom, yet which excludes the overwhelming majority of religious people from meeting the test is a failure. Second, it does not provide proper protection of atheist, agnostic, or non-religious Canadians.

Consciences are not restricted simply to the religious citizens of this country, but are common to all humans. Nor does it adequately provide protection for conscience rights that are enshrined in positive law via our constitution and its charter of rights and freedoms. Section 2a does not simply refer to freedom of religion, but explicitly mentions freedom of conscience.

Studies show that there are increasing number of Canadians who are not religious. As a recent report from StatsCan notes: “Approximately 12.6 million people, or more than one-third of Canada's population, reported having no religious affiliation. The proportion of this population has more than doubled in 20 years, going from 16.5% in 2001 to 34.6% in 2021.” Given that StatsCan notes that approximately 65% of Canadians are of working age, that means that of this 12.6 million, there are 8.19million working Canadians who are non- religious. And given Canada’s union density rate of approximately 29%, this means that approximately 2.375million Canadians do not have the protection of positive law for their consciences; exemptions apply only for narrow, explicitly religious reason, and do not extend to “moral, social, or political” concerns. This is despite the fact that it is clear that moral, social, and political concerns are, indeed, concerns of conscience, as is made evident by the fact that we use terms such as “political prisoner” and “prisoner of conscience” interchangeably in, say international law. Yet, in labour law, consciences are left unprotected. It is, as UBC legal scholar Brian Bird notes, a forgotten freedom.

Consider three case studies:

1. An atheist trade union member, whose conscience – as opposed to specific religious beliefs – does not allow her to continue membership in a union, has no means to exercise her conscience by requesting an exemption. The reason is that, despite having deep and profoundly held principles which he personally and sincerely believes are being violated by his union, the law does not specifically mention conscience rights as distinct from religious rights and the tests in case law in do not contemplate equal treatment of conscience and religion.

2. An ethnically Jewish member of a union who is non-religious, whose conscience objects to, say, her union’s providing public support and endorsement of “resistance” by political authorities that use murder, rape, and desecration of Jewish women, has no means to exercise her conscience rights, since a. she is a secular rather than a religious Jew b. her objections arise from humanist ethical and social, rather than religious reasons.

3. Another Jewish member who is modern orthodox, and attends synagogue regularly, and who shares her fellow secular Jewish member’s objection to her union’s support for Hamas, has no meaningful way to be exempt from her union because her objections, which, despite being sincerely held and arising from religious grounds, pertain not to “the union itself” but its “moral, and social views.” She believes, for religious reasons, that unions are important, but also believes that she should not be compelled to financially support a union that operates or participates in activities that are explicitly contrary to her religious beliefs, and indeed her identity.

In each of these cases, the members have bona fide objections which are sincerely held, and clearly arise from their consciences, but the law and its interpretation provide the members with the means to exercise their constitutionally protected freedom of conscience or religion, save for two means:

1. Organizing their fellow workers to de-certify or change their union at the next open period

2. Quitting their job. The latter pits the exercise of conscience against the worker’s livelihood, and the former moves what is an inherent and constitutional right held by a person into something that can only be exercised as a group, some (or many) of whom may not share the person’s conscientious concerns.

This is unconstitutional, untenable, and unconscionable.

The government should enact legislation that brings objection issues in line with the constitution and with Canadian realities provides meaningful protection of both religious and non-religious conscience rights. How?

1. It should specify and clarify within its existing exemption clauses that it applies both to conscience and religion. To use language from Ontario’s Labour Relation Act as a case study, it should state:

52 (1) Where the Board is satisfied that an employee because of his or her religious conviction or belief, or for reasons of conscience, (a) objects to joining a trade union; or (b) objects to the paying of dues or other assessments to a trade union, the Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply.

2. It should specify that such an objection refers not just to religion, but to issues of conscience that include moral, or social views, and that the test should simply be that they are held bona fide. The legislation of a test is critical to give these consciences meaningful weight, as the current test fails in that regard. How might this look? To use language from Ontario’s Labour Relation Act, it should state:

52 (1) Where the Board is satisfied that an employee because of his or her religious conviction or belief, or for reasons of conscience, that include moral, or social views,
(a) objects to joining a trade union; or (b) objects to the paying of dues or other assessments to a trade union, the Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply.

The test for the board to be satisfied will be whether such religious conviction or belief, or reasons of conscience, are sincerely held and asserted in good faith.

This removes the need for adjudicators to make particular judgments about whether something is, or is not, religious, and whether or not religion (as opposed to conscience) is, or is not, the predominate reason for their objection, both areas in which it is court’s and tribunal’s competence can be called into question. It also establishes a test which is more sensitive to real issues of conscience and does so according to test of good faith that are well established in law.

3. Finally, it should alter the remedy to ensure that the free-rider problem is eliminated, and that the worker is able to direct the dues taken of their paycheque to an organization that is more in line with their conscience. It should clarify that the worker must still have the equivalent of dues taken from their paycheque in the same manner as any other member (as is currently the practice for the very few who meet the existing test), but that the employer must direct that amount to a registered Canadian charity of the worker’s choice. Current law at various levels stipulates that such a process be followed, but many require that the union and the worker co- determine the direction of the funds, and often place the vice-chair or judge as the arbiter when such an agreement can’t be reached.

Clarifying that the direction to a registered Canadian charity makes it administratively clear (charities are registered with the Canadian government, and are easily accessible via the government’s directory) and simple, and allows the worker whose conscience has been violated to maintain moral control over the direction of funds that arise as a result of a successful exemption. Proposed language changes can be found below (again, using Ontario’s Labour Relation Act as a case study): the Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply to the employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax
Act (Canada)identified  by the employee.

This slight alteration, clarification, and strengthening of Canadian labour laws will create positive legislative protection for the inalienable conscience rights of Canadian workers, and will do so in such a way that does not introduce “free-riding.” It provides genuine and meaningful protection of workers’ conscience and religious charter rights without undermining workers’ charter right to meaningfully associate in trade unions for their mutual benefit.

Analysis:

No doubt the first response to this memo from the labour movement will be to accuse me of trying to undermine the labour movement, and suggest that concerns for conscience and religious freedoms of workers is just a guise for union busting.

My response is that I am on record, in both conservative and other venues as defending and promoting trade unions as critical institutions that provide genuine community to workers and which serve as buffers against the excesses of capital, and a means for justice in the workplace and in our economy as a whole. Let me say it as clearly as possible: trade unions are good things and we should embrace them as collaborative partners in a successful, productive and growing labour market and economy. The protection of the right to associate is critical to that embrace, and in Canada we have very robust case law that guards those rights. This is a good thing.

But second, and more importantly, the union movement should take its own slogan (taken from the preacher, Rev. Martin Luther King Jr.) that “an injustice anywhere is a threat to justice everywhere” seriously. The same holds for our basic freedoms. Laws that uphold the freedom of association at the cost of freedom of religion and conscience are fundamentally unjust. And it is hard to look at our labour law – and the case law that defines it – made to protect religious freedom, yet which excludes the overwhelming majority of religious people in Canada from exercising that freedom and call that law just.

Moreover, it is hard to look at a law that provides a given worker zero ability to exercise their freedom of conscience, and call it just. We have decades of court decisions that protect the freedom of association, and there doesn’t appear to be any danger of that changing, and this alteration will do little to change that. What it will do is provide workers with meaningful ways for workers to exercise two fundamental freedoms that are part of our culture and our constitution.