Canada's Prisoner of Conscience

Canada has reached a new milestone in jailing David Little, whose crime is to keep inviolate his conscience. Little is now Canada's famous prisoner of conscience, joining the likes of Nelson Mandela, Martin Luther King Jr. and Mahatma Gandhi. Canada has now opened itself to investigation by Amnesty International. How did all this come about, for our constitution is supposed to adhere to the rule of law and the supremacy of God?

Last Thursday, Little began serving three consecutive 22-day sentences in jail for three years of failing to file a personal income tax return. He did this because a portion of his taxes would go to taxpayer funded abortion, the same issue which blocked the passing of President Obamas's health care legislation until the President broke the impasse by issuing an Executive Order banning the use of taxpayer dollars to fund abortions.

Little asked the Supreme Court of Canada to hear his case, since his conscience would never permit him to even indirectly be a party or to aid and abet the killing of innocent unborn children. At first the courts saw the issue as an issue of freedom of religion, since Little was a Roman Catholic, and his faith's orthodoxy opposes abortion, as does that of orthodox Jews and Muslims. But Canada's Charter of Rights gives an independent free-standing right to freedom of conscience that is distinct from freedom of religion. Since Little was free to attend mass, take communion, and go to confession, the courts ruled that Little's freedom of religion was not violated.

Little persisted, arguing in vain that he would never violate his conscience, and that the government was under a duty to accommodate his conscience, and make an appropriate and just remedy, which is required in a free and democratic society that is informed by the rule of law and the supremacy of God. When the Supreme Court refused permission for Little to take his case to Ottawa, a golden opportunity to define the "rule of law", the "supremacy of God" and what the legal test is for a violation of freedom of conscience, was lost. I speak with knowledge, for I was Little's lawyer on his leave application to the Supreme Court.

Little is scheduled to return to court on August 10, 2010 to face fresh charges for failing to abide by the punishment required of him. The Income Tax Act authorizes a judge to issue a compliance order to duplicate what is already the law as determined by Parliament. In Little's case, Parliament required Little to file a personal tax return. Now Little's sentencing judge requires Little to file those same tax returns, for which he is already being punished by losing his liberty. Little is now trapped in a permanent catch 22, for to remain true to his conscience, he was forced to chose disobedience to Parliament, and now his punishment includes a judicial compliance order that again coerces him to choose between his conscience and doing what he cannot morally do, file a tax return, that may ultimately require the payment of money to fund abortions. Little does not oppose the paying of taxes; he just opposes the use of a portion of his tax dollars for a purpose that violates his conscience. Little concedes that not every purpose is open to challenge; only those expenditures that unjustly take human life, such as abortion and what international law may define as a crime against humanity.

It is time that the power given to a judge to issue any compliance order that judge deems proper must be re-examined as to its constitutional validity, because in Little's case, each compliance order is a fresh violation of Little's freedom of conscience. Compliance orders must have limits, and a reasonable one is that the judge's authority ends where an individual's constitutional rights begin.

It is embarrassing that the courts have paid only lip service to Little's constitutionally guaranteed freedom of conscience and have misinterpreted the rule of law. The rule of law means more than the ability of a majority to coerce its minorities, for that is the hallmark of unenlightened regimes in India, South Africa, and the United States that once embraced colonialism, apartheid, and racism. With his imprisonment, Little can now add alleged violations of his rights to life, liberty, and security of the person, double jeopardy, and cruel and unusual treatment and punishment.

Ironically, the week that Little went to jail was also the week that 43 new Order of Canada winners were invested. Little was not on that list. But not too long ago, on July 1, 2008, Henry Morgentaler was.
In 1970 Morgentaler was arrested for performing illegal abortions, and according to Wikipedia, in 1973 he had confessed to performing over 5000 illegal abortions. Prior to the birth of the Charter of Rights in 1982, Morgentaler fought his legal battles all the way to the Supreme Court of Canada and lost. In 1983, Morgentaler was again criminally charged for violating Canada's abortion law, but this time he ultimately prevailed, winning his case before the Supreme Court of Canada in 1988.

The honoring of Henry Morgentaler for his excellence as a Canadian was applauded by his supporters, who admired him for putting his life and liberty in jeopardy for advancing women's reproductive rights to terminate pregnancy at will. Opponents claimed the granting of Canada's highest civilian honor to Morgentaler was divisive, and rendered meaningless what was once a prestigious award. Indeed, the controversy resulted in several resignations from the Order of Canada, including Quebecers Cardinal Jean-Claude Turcotte, astronomer Rene Racine, and musician Jacqueline Richard. Of the 5,600 recipients of the Order installed since 1967, less than 12 resigned or refused appointment over the Morgentaler nomination. For those of you with aspirations to be similarly honored, the final say on appointments rests with an independent council chaired by the Chief Justice of the Supreme Court of Canada. Removal is rare, and normally reserved for those individuals who after their appointment are convicted of a crime.

This year there was no controversy and the resignations over the appointment of Morgentaler have tapered off, the last one being Quebecer engineer and academic Renato Giuseppi Bosisio. It appears that either principle no longer trumps pride and personal recognition, or that Canadians overwhelmingly now approve of abortions.

Those few who resigned from the Order of Canada exercised their freedom of conscience to do so. As a rare breed, they were not punished, nor will be. If the story of Little's case comes to their attention, they may wonder why there is no room for David Little to abide by his conscience and why Canada now has a Prisoner of Conscience. They may also wonder why a man who once illegally deliberately killed thousands of unborn human beings is now honored as one of Canada's role models, and a man who was friends with Mother Teresa and father of young children who are now looked after by their mother is willing to sacrifice everything he has to save the lives of unborn children he does not know, is mocked and ridiculed. Ultimately they may wonder why there is only one David Little willing to abide by his conscience, and why all of this year's recipients of the Order of Canada have joined Henry Morgentaler with a clear conscience.