Essay 2

PLG 310
Ethics and Professional Conduct
Submitted to Mr. Gary Mclister
by Stephanie Hauspie
(0650565)
on October 24, 2014

Morality, Religion and Law

Under Canadas Constitution can or does either religion or morality conflict with
political power?
What legal and ethical issues arise if your client is Muslim and is opposed to the
Charter right to equality as between the sexes and wants to bring a test case to see if
Sharia law can be applied to his criminal case for spanking his children?

Introduction
This essay will offer an analysis of the effects religion and morality have on laws and
political power in both Western and Islamic societies through the lenses of the Charter
of Rights1 and Freedoms (hereinafter referred to as the Charter) and Sharia Law. We
will attempt to understand sources of law and societal norms and how the two
interrelate and conflict with the concept of impartiality. We will also examine the
differences between the concept of what is right and wrong in both Western and
Islamic societies focusing on the controversial areas of gender equality and the
physical discipline of children.
Freedom of Religion
s. 2(a) of the Charter 2 provides everyone in Canada with the freedom of religion.
Canada is home to over 33 million individuals 3 who identify themselves with a variety
of religions as Canada as a country is very diverse and is often referred to as a mosaic.
22 million of these individuals identify themselves as being Catholic. 4 This means
about two thirds of Canadians consider themselves as some kind of Catholic, whether it
be Pentecostal, Lutheran, or Christian, collectively, the majority of Canadians are
Catholic. The minority in Canada is represented by all other religions. Some of these
more prominent religious groups are Muslims (which account for 1 million residents 5)
and those who choose not to associate themselves with any religion (which account for
7 million residents6). Although Canada affords its residents with the freedom to choose
in regards to religion, most Canadians choose Catholicism.
Freedom of thought
s. 2(b) of the Charter7 provides everyone in Canada with the freedom of thought,
1 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11,
<http://canlii.ca/t/ldsx>

2 Supra note 1 at s. 2(a)

3 http://www12.statcan.gc.ca/nhs-enm/2011/dp-pd/dt-td/Rp-eng.cfm?
LANG=E&APATH=3&DETAIL=0&DIM=0&FL=A&FREE=0&GC=0&GID=0&GK=0&GRP=0&PID=105399&PRI
D=0&PTYPE=105277&S=0&SHOWALL=0&SUB=0&Temporal=2013&THEME=95&VID=0

4 Ibid
5 Ibid
6 Ibid
7 Supra note 1 at s. 2(b)

belief, opinion and expression, and includes the freedom of the press and other media
communication. This fundamental freedom assists to further diversify Canadas
population by allowing each residents individuality in regards to thoughts, beliefs, and
opinions. This freedom which encourages individuality fosters an environment that
welcomes many points of view in regards to just about everything. A persons
thoughts, beliefs, and opinions form the basis for developing each individuals unique
point of view which is also dependent on that persons values and morals. Values and
morals are also individual to every person as they are too based on a persons
thoughts, beliefs, and opinions as well as life experiences and many other factors.
Morality
Morals are principles of what is right and wrong based on what a person thinks is right
and good8. Based on the concepts discussed in the previous paragraph pertaining to
how our thoughts, beliefs, and opinions form the basis for our morality, it is fair to infer
that the freedom of thought also protects our morals. Just as our thoughts, opinions,
and beliefs influence what we value and our sense of morality, our morals in turn,
affect what and how we think, how we form opinions, and what we choose to believe.
Social Norms
Just as there is a majority group in regards to religion in Canada, there is a majority
group in regards to morality. This majority group, with similar thoughts, beliefs, and
opinions create what is socially acceptable and unacceptable in Canada.
Canada is home to a democratic government, meaning we choose our own leaders by
way of vote and majority rule. The concept of voting allows everyone to have a say
and be a part of making decisions that affect all Canadians. The concept of majority
rule is a way of accommodating as many individuals, view points, and opinions as
possible. Decisions made through this democratic procedure respond to the thoughts,
beliefs, and opinions of the people.
A lot of things that are socially unacceptable are illegal however; some things that are
socially unacceptable are perfectly legal but are still frowned upon by society. The
concept of majority rule represents only the opinions of the majority. The opinions of
the minority may not be as politically influential as those of the majority but they are
still relevant in influencing social norms.
What happens when the minority begins growing and the thoughts, beliefs and
opinions of the once majority shifts to agree with those of the minority? When the
power shifts from the majority, to the minority, controversy happens. The concept of
shifting views represents changes happening in society and change is symbolic of
growth which is a positive thing. Over time, views of Canadians, or any individuals
8 http://www.merriam-webster.com/dictionary/moral

belonging to any society change based on the thoughts, beliefs, and opinions of others,
the media, etc.. As we have examined, there are many influences on the decisions
people make and the way they think to reach those decisions. When controversy
happens, the media gets involved. When the media gets involved, the opinions of the
minority are put to everyone who is willing to watch and listen. The more people
exposed to the alternative views of the minority, the more majority members may
change their opinions to conform to those of the minority. This is how social norms
change.
A few examples of this shift of power from majority views to minority views involving
the media and controversy which are relevant to Canada include internet bullying and
abortion. Although abortion is legal in Canada there are many people that oppose it
for a variety of reasons and the topic of abortion has been a topic of controversy for
decades. In some societies and religions related topics such as birth control and the
morning after pill also create controversy. More recently, internet bullying has become
a controversial topic. This unacceptable social norm comes more as a change in
society than a change in the views of society. As the internet grows and continues to
develop, issues arise that never existed prior to the conception of the internet. When
Canadians became aware of the harsh reality of the consequences of internet bullying
they voiced their concerns, as they are allowed to do in our democratic society and
because of so internet bullying became not only socially unacceptable but also illegal.
Human Error
The concepts of freedom of religion, freedom of thought, belief, and opinion, differing
values and morals, and majority rule are all concepts relating to the fact that not
everyone is the same, a concept which Canada embraces, as reflected in the
fundamental freedoms set out in the Charter that preserve and encourage our
individuality. We are only human and as Canadians we are encouraged to embrace our
differences and express them. In answering the question of whether or not religion
and morality affect political power in Canada, I have to say yes. Just as a persons
religion and moral beliefs affect any other individuals thoughts, it also affects the
thoughts of those with the power to enact constitutional legislation and pass other
laws. Canadas constitution which encompasses the Charter and other topics relating
to how our Country and our government should be run, contains an amending formula
which allows for change to the Constitution itself. 9 This amending formula, which is
contained within s. 38 of the Constitution Act, 10 incorporates the concept of majority
rule and reads:
9 http://www12.statcan.gc.ca/nhs-enm/2011/dp-pd/dt-td/Rp-eng.cfm?
LANG=E&APATH=3&DETAIL=0&DIM=0&FL=A&FREE=0&GC=0&GID=0&GK=0&GRP=0&PID=105399&PRI
D=0&PTYPE=105277&S=0&SHOWALL=0&SUB=0&Temporal=2013&THEME=95&VID=0

10 Supra note 1 at s. 38

An amendment to the Constitution of Canada may be made by proclamation issued by

the
Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the
provinces
that have, in the aggregate, according to the then latest
general census, at least fifty
per cent of the population of all the
provinces.
(2) An amendment made under subsection (1) that derogates from the
legislative
powers, the proprietary rights or any other rights or
privileges of the legislature or
government of a province shall require a
resolution supported by a majority of the
members of each of the
Senate, the House of Commons and the legislative
assemblies
required under subsection (1).
(3) An amendment referred to in subsection (2) shall not have effect in a
province
the legislative assembly of which has expressed its dissent
thereto by resolution
supported by a majority of its members prior to
the issue of the proclamation to
which the amendment relates unless that
legislative assembly, subsequently, by
resolution supported by a
majority of its members, revokes its dissent and
authorizes the
amendment.
Not only does the amending formula encompass the concept of majority rule, it also
places importance on the minority or dissenting views. This amending clause further
emphasizes the importance Canada places on the freedom of individuality.
In considering all of the factors that influence decisions made by anyone, it is difficult
to try to persuade the opinion that religion and morality do not affect the political
power allowed through Canadas constitution. Our constitution can be amended
through decisions of people. Our laws are enacted through the decisions of people. It
is human nature to incorporate our individual and unique thoughts, beliefs, and
opinions which influence our religious and moral choices affect the decisions we make.
To say that members of the Senate, the House of Commons, and the government are
completely impartial and are able to turn off or tune out their religious opinions
and morals when making decisions is to deny human nature. In this context, our
human nature to allow our personal thoughts, beliefs, and opinions serves as human
error and religion and morality do conflict with the political power of the Constitution.
Morality, Religion, and Political Power
In examining one of Canadas Constitutional documents, that being the Charter, we
have came to understand the importance Canada as a whole places on attempting to
accommodate everyone equally. Canadians can choose what religion they belong to,
and whether they want to be associated with religion at all. Canadians are free to

think, believe, and form whatever opinions they so choose. These freedoms and
Canadas acceptance and even encouragement to be different, and be yourself freely
create the ability for everyone to form biases; opinions against those who
Spanking Children
In Canada, the concept of spanking children is extremely controversial with mixed
opinions as to whether or not spanking is socially acceptable or falls within the scope
of social norms. The act of spanking has been a topic in our Criminal Code since it was
first drafted in 1892 and the provision pertaining to spanking has remained generally
unchanged since then.11 s. 43 of the Criminal Code of Canada (hereinafter referred to
as the C.C.)12 reads as follows:
Every schoolteacher, parent or person standing in the place of a parent is justified in
using force by way of correction toward a pupil or child, as the case may be, who is
under his care, if the
force does not exceed what is reasonable under the
circumstances.
Although this provision of the Criminal Code makes spanking children by a school
teacher, parent, or other parental figure legal, it does not make it right or socially
acceptable. Back in 1892 it may have been considered right and morally acceptable to
spank children, however in todays society of 2014 that majority is losing its power,
and the power is shifting to the once minority and as we examined earlier, this shift of
power between conflicting views creates controversy.
In the 2004 case of the Canadian Foundation for Children, Youth and the Law v. Canada
(Attorney General), 6 of 9 Supreme Court justices concluded that s. 43 does not
infringe a childs rights to security of the person or a childs right to equality, and it
does not constitute cruel and unusual treatment or punishment. The majority of
justices in the Canadian Foundation for Children, Youth and the Law upheld s. 43 on
the basis that it protects only parents, schoolteachers and persons who have assumed
all of the obligations of parenthood.13 Although the majority of the judges agreed to
allow the spanking law to remain, they did so with the parents and teachers in mind.
The dissenting opinions of the minority judges reflect greater concern for the child
rather than the teacher or parents. With 3 of 9 judges dissenting, one third of the
judges did not agree with the provision and although their minority views were not
enough to strike down s. 43, one third does represent a fairly large portion of all
decision makers. Keep in mind that this case was put before the Supreme Court in
11 http://www.parl.gc.ca/content/lop/researchpublications/prb0510-e.htm#opinion
12 Criminal Code, RSC 1985, c C-46 at s. 43
13 http://www.parl.gc.ca/content/lop/researchpublications/prb0510-e.htm#section43

2004 which was a decade ago and society has changed a great deal since then.
Societys view of controversial topics such as spanking changed a great deal since then
also.
Sharia Law
Sharia law is the theological manual14 of Islam and governs public behaviour, private
behaviour, and private beliefs of those belonging to the Muslim religion. 15 Sharia law,
just as Canadas Constitutional Law, is comprised of many facets including the Quran,
which is a complete record of the exact words revealed by God through the Archangel
Gabriel to Prophet Muhammad, the words and actions of other prophets as well as
haddiths. Sharia law, just as any religion or law in Canada, is subject to interpretation
and that interpretation varies between individuals. Much like Canadian laws, Sharia
law reflects social norms except norms reflected in Sharia law are based on Islamic
societies rather than Canadian Society. Also, it should be noted that Sharia law is not
only law, but also the rule of religion of Muslims; religion and law are one in the same.
In considering spanking in relation to Sharia Law, Muslim scholars state that it is
permissible for parents to give their child a light smack if theyve previously resorted to
other methods of disciplinary action that proved unsuccessful. Another example of
when spanking a child is permissible is if the child has reached the age of 10 years
and refuses to pray after the parents have attempted since the age of 7 to exhort and
instruct the child to worship the Lord.16 It is also a common belief that one cannot hit
the face, cannot administer harsh or severe hitting, and must only do so with the intent
to discipline the child, and cannot be out of anger, should not insult, degrade or
verbally abuse the child.17 Although through these examples it is illustrated that
physically disciplining children is both religiously and legally acceptable under Shaira
law, child abuse is frowned upon in Islam. Much like in Canadian Law, specifically s.
43 of the C.C., Sharia law limits to what extent physical discipline is permissible in
regards to children.
In furthering the idea of differing interpretation of Sharia Law we must look at
extremist groups such as ISIS who claim to be acting in accordance with the Quran and
other beliefs that make up Sharia Law however their interpretation of Sharia Law
differs from the majority of Muslims. Extremist groups such as ISIS represent only a
14 http://www.cfr.org/religion/islam-governing-under-sharia/p8034
15 http://www.billionbibles.org/sharia/sharia-law.html
16 http://www.bt.com.bn/files/digital/Islamia/Issue286/BT24Jan.6.pdf
17 http://www.bt.com.bn/files/digital/Islamia/Issue286/BT24Jan.6.pdf

minority of individuals who associate themselves with the Muslim religion and Sharia
Law.
Gender Equality
Gender equality in Canada has developed greatly over the last few decades. There are
provisions in numerous statutes that ensure equal treatment based on sex, some of
which make up part of Canadas constitutional law, such as s. 15(1) of the Charter 18.
Other places where gender equality is preserved is in the Ontario Human Rights Code
which prohibits discrimination in 5 social areas on the ground of sex along with 13
other grounds19 and the Employment Standards Act which ensures both men and
women are paid equally for performing similar duties 20. In Sharia law however,
equality amongst the sexes is not an issue of such great importance as there are many
rules and religious beliefs that contravene the concept of gender equality. Of all legal
systems in the world today, Islam's Sharia law is the most intrusive and strict,
especially against women.21 In most parts of the world, Muslims say that a woman
should be able to decide whether to wear a veil. Yet when it comes to private life, most
Muslims say a wife should always obey her husband. There is considerable
disagreement over whether a wife should be able to initiate a divorce and whether a
daughter should be able to receive an inheritance equal to a sons. 22 In a legal context,
a woman's testimony in court carries only half the weight of a man's and is only
allowed in cases dealing with property. 23
Legal and Ethical Issues
I have been asked to consider what legal and ethical issues, if any, would arise in
choosing to represent a Muslim man in a case pertaining to spanking children and
initiate a test case to see if applying Sharia law could be applied.
Legal and ethical conflict exists in considering my clients desire to apply Sharia law to
his criminal case. Bringing a test case to see if Sharia law should be applied is
completely legal in a sense that his fundamental freedoms of religion, belief, and
18 Supra note 1 at s. 15(1)
19 Human Rights Code, RSO 1990, c H.19, s. 1
20 Employment Standards Act, 2000, SO 2000, c 41, s. 42
21 Supra note 15
22 http://www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politics-society-overview/
23 Supra note 15

expression of thought which are set out in the Charter afford him the right to pursue
such a test case, so a legal conflict does not arise there. However his opposition to
gender equality is not legal whatsoever. Although his individual beliefs consist of
gender inequality, and he has the right to belief, it would be extremely difficult to try to
persuade a court to revert decades of law making and implementation in all parts of
society to allow for gender inequality. It would be a legal issue for me to represent a
client who intends to contravene the law and ultimately bring the administration of
justice into disrepute.24
Other legal issues that would arise out of this case include the topic of child abuse.
From what we have examined about both Western and Islamic cultures, child abuse is
unacceptable and illegal. Although the scenario calls for my consideration towards the
idea of spanking, the possibility of child abuse is extremely relevant. How much force
did my client use against his child? Under what circumstances did my client hit his
child? Where did he hit his child. In determining whether or not a legal issue arises
out of spanking in this case, many more details must be elicited from the client prior to
my decision as to whether or not to represent him. My moral values concerning child
abuse may also create a conflict however, an ethical conflict rather than a legal
conflict. I would do my best to represent my client impartially and without prejudice
however as we examined earlier, it is difficult to set aside personal views and beliefs.
Conclusion
Morality and Religion do affect political power. An individuals beliefs and opinions are
reflected onto the decisions they make whether it be a father making a decision to
spank his children as discipline or a Supreme Court judge voting against a precedent
setting test case. In Canada, we are encouraged to embrace our differences and
express ourselves freely. We are also discouraged from discriminating those who are
different than ourselves. Representing someone from a different culture, possessing
different views on societal norms and having different morals and values poses many
legal and ethical issues, just as morality and religion create issues in regards to
political power and Canadas Constitution.
In deciding whether or not to represent a man in a test case to apply the concepts of
gender inequality as per Sharia Law to a criminal case about spanking his children, I
would have to say I would not represent him. First of all, being a female, Im not sure if
he would be comfortable with my representation. Secondly, I would not represent him
based on my lack of competence in the area of Sharia Law. Prior to writing this essay, I
knew nothing about Sharia Law or the Muslim religion and after weeks of research feel
like I still only know the bare minimums. Also, in applying Sharia law to a criminal case
about spanking is not going to be effective as Western Canadian Law and Sharia Law
share similarities concerning the spanking of children. It must be reasonable, as child
24 Paralegal Rules of Conduct at Rule 8.02(2)(e)

abuse is morally wrong, socially unacceptable, and against the law in both western and
Muslim societies. With all that being said, I have justified my reasons for choosing to
not represent my client based on issues of competency however, in all actuality, my
morals, and the morals of my client are in conflict as I believe in and promote gender
equality where he does not. And whether or not I admit it to my client, I would not be
comfortable assisting a man try to degrade women and revert our law back to what it
was before imposing gender equality provisions. I can justify my reasons for not
representing him in an impartial manner, though my religious and moral beliefs still
played a part in deciding whether to represent him or not. Religion and morality, how
they intertwine and how they clash, will create legal and ethical issues for anyone.