1

CONSTITUTIONAL LAW

35 FREEDOM OF RELIGION:RESTRICTION AND ACCOMMODATIONShigenori Matsui

2

INTRODUCTION s. 2(a) everyone has the following fundamental

freedoms… freedom of conscience and religion

s 15 also prohibits discrimination on the basis of religion

3

two basic ideas 1) the government should not interfere with

individual religious freedom>free exercise of religion

2) the government should not grant privilege to a particular religion=the government should not establish a particular religion as a state religion, and the government should not give assistance to a particular religion>establishment clause

4

with respect to free exercise what is religion? When freedom of religion is infringed? What infringement can be justified

under s. 1? The most important issue is whether the

government is simply obliged not to interfere with religion or the government is obliged to accommodate the secular order with religious freedom.

5

With respect to establishment of religion The first amendment to the U.S. constitution

has both free exercise clause and establishment clause but there is no establishment clause in the Canadian Charter. Therefore, violation of the establishment principle is and should be challenged as an infringement of freedom of religion.

Different understanding of establishment principle

6

Moreover, there is a limit to establishment principle in Canada: preamble to the Charter provides “Whereas

Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

s. 93 of the constitution act, 1867

7

I Sunday Observance Law

R v. Big M Drug Mart Ltd, [1985]

8

“One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.”

9

“To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non‑Christians. In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non‑Christian Canadians. It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non‑believers alike. The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture. ”

10

“For the present case it is sufficient in my opinion to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose. ….

In my view, the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. The element of religious compulsion is perhaps somewhat more difficult to perceive (especially for those whose beliefs are being enforced) when, as here, it is non‑action rather than action that is being decreed, but in my view compulsion is nevertheless what it amounts to.”

11

Edwards Books and Art Ltd v. The Queen [1986]

12

““The first question is whether indirect burdens on religious practice are prohibited by the constitutional guarantee of freedom of religion. In my opinion indirect coercion by the state is comprehended within the evils from which s. 2(a) may afford protection…. It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a).”

13

“This does not mean, however, that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion…. Section 2(a) does not require the legislatures to eliminate every miniscule state‑imposed cost associated with the practice of religion.”

“For a state‑imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial…”

14

“The Attorney General of Ontario submits that any disability suffered by Saturday‑observing retailers is a consequence of their religious beliefs, and not of the Act….”

“A careful comparison of the effects of Sunday closing legislation on different religious groups clearly demonstrates the manner in which the burden flows from the legislation…”

“On the only evidence before the Court, I therefore do not think that the competitive pressure on non‑exempt retailers to abandon the observance of a Saturday Sabbath can be characterized as insubstantial or trivial. It follows that their freedom of religion is abridged by the Act.”

15

“I am satisfied that the Act is aimed at a pressing and substantial concern. It therefore survives the first part of the inquiry under s. 1. A more difficult question‑‑and one which goes to the heart of this litigation‑‑is whether the Retail Business Holidays Act abridges the freedom of religion of Saturday observers as little as is reasonably possible. … What must be decided, however, is whether there is some reasonable alternative scheme which would allow the province to achieve its objective with fewer detrimental effects on religious freedom.”

16

“One suggestion was that the objective of protecting workers from involuntary Sunday labour could be achieved by legislation which focused on the employee rather than the employer. There could, for example, be an enactment conferring on workers a right to refuse Sunday work. But such a scheme would in my view fall far short of achieving the objectives of the Retail Business Holidays Act. It would fail to recognize the subtle coercive pressure which an employer can exert on an employee.”

17

“The other alternative would be to retain the basic format of the Retail Business Holidays Act, but to replace s. 3(4) with a complete exemption from s. 2 for those retailers who have a sincerely held religious belief requiring them to close their stores on a day other than Sunday.

In balancing the interests of retail employees to a holiday in common with their family and friends against the s. 2(a) interests of those affected the Legislature engaged in the process envisaged by s. 1 of the Charter. A "reasonable limit" is one which, having regard to the principles enunciated in Oakes, it was reasonable for the legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line.”

18

Why Sunday observance law infringes the freedom of religion?

19

Do you think that Sunday observance law could be justified under s. 1?

20

What about the statutory holidays? Islamic Schools Federation of Ontario v.

Ottawa Board of Education [1997](Ont. Div. Ct.)

21

II Restriction or Accommodation?

Syndicat Northcrest v. Amselem [2004]

22

What is religion? “In order to define religious freedom, we must first

ask ourselves what we mean by “religion”. … Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”

23

Mere personal belief sufficient? “The emphasis then is on personal choice of religious

beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make…”

24

“Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.”

25

“Once an individual has shown that his or her religious freedom is triggered, as outlined above, a court must then ascertain whether there has been enough of an interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the … Charter…Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religious practice that are non-trivial.

It consequently suffices that a claimant show that the impugned contractual or legislative provision (or conduct) interferes with his or her ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.”

26

Is it necessary to prove that a particular practice is mandated by a religion?

“…in my opinion, any incorporation of distinctions between “obligation” and “custom” or, as made by the respondent and the courts below, between “objective obligation” and “subjective obligation or belief” within the framework of a religious freedom analysis is dubious, unwarranted and unduly restrictive. In my view, when courts undertake the task of analysing religious doctrine in order to determine the truth or falsity of a contentious matter of religious law, or when courts attempt to define the very concept of religious “obligation”, as has been suggested in the courts below, they enter forbidden domain. It is not within the expertise and purview of secular courts to adjudicate questions of religious doctrine.”

27

“It is evident that in respect of Mr. Amselem the impugned clauses of the declaration of co-ownership interfere with his right in a substantial way. For if, as Rochon J. himself found, Mr. Amselem sincerely believes that he is obligated by the Jewish religion to set up and dwell in his own succah, then a prohibition against setting up his own succah obliterates the substance of his right, let alone interferes with it in a non-trivial fashion. A communal succah is simply not an option. Thus, his right is definitely infringed.”

28

“In the final analysis, however, I am of the view that the alleged intrusions or deleterious effects on the respondent’s rights or interests under the circumstances are, at best, minimal and thus cannot be reasonably considered as imposing valid limits on the exercise of the appellants’ religious freedom.”

“Under the circumstances, I find that the respondent’s justificatory claims for this infringement are unfounded; the co-owners’ personal security concerns are largely obviated and their property interests are, at most, minimally intruded upon. The appellants are thus legally entitled to set up succahs on their balconies for a period lasting no longer than the holiday of Succot, so long as the succahs allow room for a passageway in case of emergency as well as conform, as much as possible, with the general aesthetics of the property.”

29

Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006]

30

“In the case at bar, Gurbaj Singh must therefore show that he sincerely believes that his faith requires him at all times to wear a kirpan made of metal. Evidence to this effect was introduced and was not contradicted.

Thus, there can be no doubt that the council of commissioners’ decision prohibiting Gurbaj Singh from wearing his kirpan to Sainte‑Catherine‑Labouré school infringes his freedom of religion. This limit must therefore be justified under s. 1 of the Canadian Charter.”

31

As stated by the Court of Appeal, the council of commissioners’ decision “was motivated by [a pressing and substantial] objective, namely, to ensure an environment conducive to the development and learning of the students. This requires [the CSMB] to ensure the safety of the students and the staff. This duty is at the core of the mandate entrusted to educational institutions”… The appellant concedes that this objective is laudable and that it passes the first stage of the test.

32

“The decision must have a rational connection with the objective. In the instant case, prohibiting Gurbaj Singh from wearing his kirpan to school was intended to further this objective. Despite the profound religious significance of the kirpan for Gurbaj Singh, it also has the characteristics of a bladed weapon and could therefore cause injury. The council of commissioners’ decision therefore has a rational connection with the objective of ensuring a reasonable level of safety in schools.”

33

“I agree that it is not necessary to wait for harm to be done before acting, but the existence of concerns relating to safety must be unequivocally established for the infringement of a constitutional right to be justified. Given the evidence in the record, it is my opinion that the respondents’ argument in support of an absolute prohibition — namely that kirpans are inherently dangerous — must fail.

In my opinion, the respondents have failed to demonstrate that it would be reasonable to conclude that an absolute prohibition against wearing a kirpan minimally impairs Gurbaj Singh’s rights.”

34

“A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. On the other hand, accommodating Gurbaj Singh and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition thus outweigh its salutary effects.”

35

Alberta v. Hutterian Brethren of Wilson Colony [2009]

36

“Maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of identity theft is clearly a goal of pressing and substantial importance, capable of justifying limits on rights.

I conclude that the Province has established that the universal photo requirement is rationally related to its goal of protecting the integrity of the driver’s licensing system and preventing it from being used for purposes of identity theft.”

37

“The problem with the claimants’ proposal in the context of the minimum impairment inquiry is that it compromises the Province’s goal of minimizing the risk of misuse of driver’s licences for identity theft. The stamp “not to be used for identification purposes” might prevent a person who comes into physical possession of such a licence from using it as a breeder document, but it would not prevent a person from assuming the identity of the licence holder and producing a fake document, which could not be checked in the absence of a photo in the data bank. ”

38

“I conclude that the universal photo requirement minimally impairs the s. 2(a) right. It falls within a range of reasonable options available to address the goal of preserving the integrity of the driver’s licensing system. All other options would significantly increase the risk of identity theft using driver’s licences. The measure seeks to realize the legislative goal in a minimally intrusive way.”

39

“In my view, a distinction must be maintained between the reasonable accommodation analysis undertaken when applying human rights laws, and the s. 1 justification analysis that applies to a claim that a law infringes the Charter. Where the validity of a law is at stake, the appropriate approach is a s. 1 Oakes analysis. Under this analysis, the issue at the stage of minimum impairment is whether the goal of the measure could be accomplished in a less infringing manner. The balancing of effects takes place at the third and final stage of the proportionality test. If the government establishes justification under the Oakes test, the law is constitutional. If not, the law is null and void under s. 52 insofar as it is inconsistent with the Charter.”

40

“A different analysis applies where a government action or administrative practice is alleged to violate the claimant’s Charter rights. If a Charter violation is found, the court’s remedial jurisdiction lies not under s. 52 of the Constitution Act, 1982 but under s. 24 (1) of the Charter: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61. In such cases, the jurisprudence on the duty to accommodate, which applies to governments and private parties alike, may be helpful “to explain the burden resulting from the minimal impairment test with respect to a particular individual”

41

Minimal impairment and reasonable accommodation are conceptually distinct. Reasonable accommodation is a concept drawn from human rights statutes and jurisprudence. It envisions a dynamic process whereby the parties — most commonly an employer and employee — adjust the terms of their relationship in conformity with the requirements of human rights legislation, up to the point at which accommodation would mean undue hardship for the accommodating party.

42

A very different kind of relationship exists between a legislature and the people subject to its laws. By their very nature, laws of general application are not tailored to the unique needs of individual claimants. The legislature has no capacity or legal obligation to engage in such an individualized determination, and in many cases would have no advance notice of a law’s potential to infringe Charter rights. It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief. Laws of general application affect the general public, not just the claimants before the court. The broader societal context in which the law operates must inform the s. 1 justification analysis.

43

A law’s constitutionality under s. 1 of the Charter is determined, not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact. While the law’s impact on the individual claimants is undoubtedly a significant factor for the court to consider in determining whether the infringement is justified, the court’s ultimate perspective is societal. The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.

44

In summary, where the validity of a law of general application is at stake, reasonable accommodation is not an appropriate substitute for a proper s. 1 analysis based on the methodology of Oakes. Where the government has passed a measure into law, the provisions of s. 1 apply. The government is entitled to justify the law, not by showing that it has accommodated the claimant, but by establishing that the measure is rationally connected to a pressing and substantial goal, minimally impairing of the right and proportionate in its effects.”

45

“I conclude that the impact of the limit on religious practice imposed by the universal photo requirement for obtaining a driver’s licence is that Colony members will be obliged to make alternative arrangements for highway transport. This will impose some financial cost on the community and depart from their tradition of being self-sufficient in terms of transport. These costs are not trivial. But on the record, they do not rise to the level of seriously affecting the claimants’ right to pursue their religion. They do not negate the choice that lies at the heart of freedom of religion.

Balancing the salutary and deleterious effects of the law, I conclude that the impact of the limit on religious practice associated with the universal photo requirement for obtaining a driver’s licence, is proportionate.”

46

How can you reconcile Amselem and Multani decisions with Hutterian Brethren decision?

47

Does freedom of religion require state neutrality toward religion or some kinds of accommodation with religion? Congregation des temoins de Jehovah de St-

Jerome-Lafontaine v. Lafontaine [2004]

48

Ross v. New Brunswick School District Co. 15 [1996]

49

Could religious officials refuse to perform civil or religious same-sex marriage?

50

Is prohibition and punishment of bigamy or polygamy justified?

What about the refusal to accept blood transfusion?

R. v. Children’s Aid Society of Metropolitan Toronto [1995]

A.C. v. Manitoba [2009]

What about the judicial enforcement of an agreement to give religious permission to remarriage?

Bruker v. Marcovitz [2007]