Much of the media coverage of the legal decision involving Derek And Francis Baars and the Hamilton Children’s Aid Society has treated it as a quirky story about a Christian family versus the Easter Bunny and Santa Claus.
In fact, the 61-page decision by Justice A. J. Goodman is a blistering critique of the Aid Society’s violation of Charter rights in trying to force two Canadians citizens to tell lies to kids in foster care.
Worse, the ruling cites evidence that the Society’s employees appear to have been motivated by an “underlying animus” and “stereotypical belief” about Christians. As such, Justice Goodman ruled, the Charter breaches were in “bad faith” and “improper” as well as “unreasonable, arbitrary and discriminatory.”
That’s a long way from some fluffy tale about the Easter Bunny and Jolly Old St. Nick being before the bar.
Indeed, Justice Goodman implies the Society itself might have indulged in story crafting of its own with certain evidence it used in court. For example, the only record of one crucial conversation that purportedly occurred during Christmas 2015 was “clearly drafted after the fact” on Feb. 26, 2016.
“It is not lost on me that the date of the case note (is) implicitly suggestive of some retrospective, tacit concerns,” Justice Goodman writes.
Why does that matter? Because the entire case is about telling the truth, the whole truth and nothing but the truth.
Vigilant truth is the lived commitment of the Baars, a deeply Protestant couple then living in Hamilton who opened their home in December 2015 to foster sisters aged three and four. The couple will no more lie than break any other Commandment. They are completely honest about that.
Six months previous, when they were undergoing training to become foster parents, they were upfront that their faith prohibited them taking any deviation from the truth. They would not, as a result, tell children in their care that the Easter Bunny or Santa Claus is real.
Crucially, they would not – and the evidence showed they did not – try to dissuade the children from believing in such fictional characters. They would not impose their beliefs on the little ones. If any questions came up, the Baars would remain silent or deftly change the subject.
Contrary to their own traditions, they were even happy to hide chocolate eggs for an Easter hunt, though they felt obliged to own up if necessary to the goodies being store-bought rather than spin a whopper about a wascally wabbit bringing them.
All this was fine until a Children’s Aid Society placement worker, Tracey Lindsay, began pressuring the Baars to be “culturally sensitive,” ignore their own religious convictions, and perpetuate the merry myth-making at Christmas and Easter.
The placement worker denies ever asking the couple to lie. Justice Goodman makes judicial short work of her claim: “I reject Lindsay’s evidence where it conflicts with the Baars.”
In other words, after reviewing all the evidence, the judge had no doubt in his mind about who was telling the truth.
Yet the placement worker’s belief in her own infallibility was apparently such that she moved to have the two children taken from the home because of the Baars’ refusal to lie. With a single day’s notice in March 2016, without the kids even having time to gather their things, Hamilton CAS took the girls away. Despite glowing reports about the care they’d provided, including thanks from the girls’ mother for the wonderful Christmas the Baars gave her daughters, the foster home was shut down. The couple was effectively prevented from ever taking children into care again.
Along the way, there was a truly weird detour into questions suddenly being asked about whether the Baars, because of their Christian beliefs, would object to having a same-sex couple adopt children they were fostering. That part of the narrative seems to have been just a bit much too much for Justice Goodman.
He accepted the family’s insistence they would raise no such objection, and tartly pointed out that the question was raised at a time when there was no prospect whatever of the little girls being adopted by anyone, same-sex or otherwise.
“I cannot imagine why, at that point in time, asking such questions would be ‘helpful in matching foster parents with children who may move to adoption.’ It cannot be reasonably said that the conversation took place with the intention of assessing the Baars’ receptiveness to potential adoptive same-sex couples generally,” he writes.
“As a result, it seems likely that Lindsay’s discussion was fueled by a potential stereotypical belief in the inability of Christians to support same-sex marriage and not, indeed, to any valid statutory objective.”
Whatever fueled the placement worker’s conduct overall – and by extension the enabling behaviour of the Hamilton Children’s Aid Society – Justice Goodman found the effect was serious violation of the Baars’ Charter rights to religious freedom and freedom of expression.
The emphatic clarity of his ruling elevates the case well beyond a fuzzy-wuzzy conflict over figures of seasonal fun. It takes it past even the familiar saga of an imperious bureaucrat trapping innocent citizens in a power struggle they can only lose.
For while Justice Goodman spends much of the judgement meticulously detailing the evidence, he also does a deep dive into Charter law. The result is a stinging rebuke to the idea that, in the service of obscure, abstract higher purposes, the State can use its awesome force to oblige citizens to disavow their own beliefs, proclaim things they do not believe, or speak when their preference is silence.
“The purpose of the Society’s actions was to control the Baars’ attempts to convey meaning, namely their attempts to convey their opinion and values with regard to lying…. (T)he right to freedom of expression prohibits compelling anyone to express opinions not their own,” Justice Goodman writes.
“The Baars had the right to respond to the Society’s demand with silence, and a right to refuse to tell the children what the Society wished them to say…. Their silence is protected under (the Charter) and they should not have suffered repercussions because of their decision to assert their right to silence.”
Those are words that should be re-read daily by every politician and State agent in the country. They are particularly suited to this moment following the debacle of the Canada Summer Jobs program, where Prime Minister Trudeau and his government want Canadians to “just tick the box” on a funding application form attesting that they support a non-existent right to abortion.
Such obligatory box requires, of course, ignoring one’s true opinions and values regarding abortion. But failure to “tick the box” means no federal funds to hire summer students, just as refusing to affirm the reality of the non-existent Easter Bunny meant the Baars losing their foster children and their foster home.
As with the Baars, legal action is now proceeding over the Summer Jobs perfidy. We can only hope Justice Goodman’s decision serves a noble purpose in that process. More, moving beyond the specific story line before the courts, we can be infinitely grateful there are Canadians who simply will not lie down when the State tells them to lie.
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