Freedom of Conscience & Religion under the Charter Flashcards
Freedom of religion:
the state cannot, in the exercise of powers, impose the majority’s religion on the general population in some concrete or symbolic way.
Free Exercise of Religion:
it is inappropriate for the state to interfere with religious beliefs or practices of individuals or groups.
R v Big M Drug Mart [1985]
t was the Lord’s Day Act which prohibited business being conducted on the Christian Sabbath in Calgary.
Just for note: Justice Dickson does not apply the Oakes Test because he had not written it at this stage – it was 1985 that this case was held.
Does not mean that you don’t apply Oakes Test; you still need to apply it. We will see how.
Here we have a prohibition to work on specific days in Calgary.
The constitutional question that was put before the court was whether the act infringed the freedom of conscience and religion of the businesses’ employees.
This particular drugstore decided to sell products on Sundays, which was in direct contravention with the Lord’s Day Act. The employees said that this was infringing their freedom of religion and that they could do whatever they want.
There was also a question of whether or not this was within the powers of Parliament – criminal power within Section 91(27).
In 1985 the Supreme Court of Canada found that the statute informed with a criminal law – so, it was a federal statute – and that it was also a federal act, even though the case took place in Calgary. Therefore everything was fine with regards to jurisdiction.
However, it was contrary to the freedom of religion guaranteed under Section 2(a), and consequently inoperative under Section 52 of the Constitution.
Big M Drug Mart is a private company and not an individual. The charter and the Constitution applies to individuals but not non-persons.
Here a charter examination was run because of employees/persons, but the reasons for invalidating the law was Section 52.
It basically was not because of a charter violation; it’s because it was not in accordance with the Constitution as a whole.
The Charter does not directly apply to the company, it applies to its employees and its owner.
“To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works as a form of coercion.”
Justice Dickson then gives us the pattern that we apply to every single case, especially with regards to expression and religion.
First, a law can be unconstitutional either because there is a purpose that is unconstitutional, or there is an effect that can invalidate it.
He says that if we have an invalid purpose – meaning if we had a religious purpose (a valid purpose for it be a secular purpose) — then we need to look at the effect of the law.
So the purpose here was to go to church, which was why selling goods on Sunday was prohibited. That was a religious purpose. The effect of not being able to observe what to do or what not to do is irrelevant. The minute that the law is unconstitutional, meaning it’s religious, we move onto a Section 1 analysis.
Edwards Books and Art Ltd v The Queen [1986]
his case the purpose was not religious. This was in Ontario and was about an act that enacted a common day of rest on Sunday only for large businesses.
What happened is that for Ontario business owners were selling goods on Sunday and were in violation. The provincial act established a common day of rest, and there was an exemption for small businesses.
This is very important for the analysis of the Oakes Test.
Here, the issue before the court was whether the act was within the legislative power of the province – Section 92;
Whether any part of the Act violated Section 2(a) — religion— and Section 7 — Life, liberty and security of the person (criminal Law) — and Section 15 — equality.
…and whether any of those violations could be saved…or the Act could be sustained under Section 1 (Oakes Test).
The Court found that it was within the power of the province. There is no problem with regards to jurisdiction.
However, it violated Section 2(a).
It was, however, saved under the Section 1 (Oakes Test) analysis.
The law came within the provincial power of property and civil rights because it dealt with businesses and retail. However, it pursued a secular purpose because it was providing a day a break/pause to the retail workers – it was to provide a holiday, but not a holy day. It was not necessarily for the workers to observe a religion. So, this was a nonreligious purpose.
The effect, because it was a Sunday, made it a violation of religion. What if you observe another day of rest because of your religion? If you are Jewish and you observe Saturday; this Act imposes upon you to observe Sunday as a day of rest.
That is where the violation comes into play.
The effect was in violation of Section 2(a).
If we have a violation of our Charter right we run the Oakes Test (Section 1 analysis).
Oakes Test:
Pressing and Substantial Objective.
Rational Connection.
Minimal Impairment.
Proportionality.
Justice Dickson said that there was a pressing and substantial objective. It was allowing people to form social relationships during time off work. It is important for people to get together and socialize.
There was a rational connection because it targeted only the retail industry, and those were the most vulnerable employees. It makes sense that it is a target of the retail industry; they are more flexible because they have more workers.
The minimal impairment was a problem. The scheme protected employees who were typically vulnerable. However, what is the minimum impairment test entail? You need to look at other alternatives to see if there is one that could be less harmful. The Court said because it is imposing Sunday on people…it could be said that the people who observe Saturday as the Sabbath could just take the day off. However, the Court said that if you allow people to take Saturday off instead of Sunday, that leads to a religious inquiry within your religion, which is an infringement. That means that you would have to go and see every single employee and ask them to disclose their religion on whether or not they can take that day off. The Court was not comfortable with that. That violate Section 2(a).
So, the Court said it was the least impairment possible to just impose a Sunday rest day, because it is not actually connected to religion. Otherwise, the religious inquiry would be more harmful. So, this would be the least harmful way of going about it.
With regards to proportionality, it was found to be proportional by the majority; the beneficial aspect outweighed the negative aspect of the infringement. The dissent opinion by Justice Wilson said that she did not understand why this only applies to the big businesses, because that would be minimally impairing in a way in small business owners would not be penalized since it is harder for them to substitute workers. She said it should be across the board the same – it should be uniform.
What is really funny about proportionality there is that the judgement was upheld. The Act was fine and valid.
A few years later Ontario legislature went ahead and reenacted the law and took into consideration the dissent opinion of Justice Wilson made it across the board for all businesses to make it fair.
Syndicat Northcrest v Amselem [2004]
This was a condominium complex. These Jewish homeowners wanted to build dwellings. It is part of a Jewish ritual to build these dwellings and from 90 days to live in them. The dwellings were attached to the condominiums on balconies.
This was in direct violation of the bylaws pertaining to the condominium complex agreement. They have no right to build such dwellings.
The other owners in the building brought forward an action against them and said that they were in violation of the bylaw.
The Jewish residents said that this was an infringement of their religion and that they were allowed to build the dwellings.
The court said that religion was subjective. They went into an inquiry of what religion is, which is why this is such a foundational case.
Now, keep in mind that this is a corporation. Why does the Charter applies to this? We know that we have to have an individual.
Here, it is not the Charter that applies, but the analysis that the court ran was similar because of Québec’s own charter, and it was relevant to these particular people.
So, this was a dispute between two private people. How come the Charter applies? We saw in the Dolphin case that a dispute between two private entities is not something that the Charter can apply to.
First, there is standing because the Québec charter does apply to an individual. That is why there is standing here an the court likes to run analysis similar to the Charter of Rights and Freedoms, because those two sections are very very similar.
The Court went into the details of whether or not it was a religion, for the reason that it is received expert opinion on this case stating that there was no obligation under Jewish law to construct those particular dwellings. The people could use a communal dwelling if they wanted during the festival that lasts 90 days in another place and without violating the bylaws.
The Court said it did not matter. This is where freedom of conscience is important. It doesn’t matter that the expert said that it was okay to build those temporary dwellings elsewhere.
What matters is that the person, in this case Amselem, believes as an individual that this is part of their religion. It does not need to be established as something that is recognized by the community as a whole. If the person, inside of themselves, believes that this is something that they need to obey by, it is considered religion.
In other words, there is no need for the beliefs to be recognized by an organized religion.
The state is in no position to be the arbitrator of religious dogma. It is not the place of the state to tell you whether or not you are practising your religion, or how to practice.
If there is a sincere belief within the person, not recognized by society, it is enough to act as a religion.
Why is this case so important? Yes, it gives us a good assessment of whether or not we are dealing with freedom of religion, but what is the overall conflict here?
This is a contractual dispute and there could be a tort or contract action there because of the bylaws. These Jewish residents are in violation of their contract. They signed willingly a contract saying that they would not install dwellings.
However, the court said that because their freedom of religion had been impaired it was okay for them not to be held to account by their contractual obligations.
So, it doesn’t really provide an exemption from the law. But it tells you that freedom of religion is higher than your contractual obligations.
Congrégation des témoins de Jehovah de St Jérome Lafontaine v Lafontaine [2004]
his is a case where Jehovah witnesses wanted to build a place of worship, but the zoning laws within the town of Lafontaine said it was prohibited.
Chief Justice McLachlin tread very carefully here. Clearly it was important that this was a religious building. If it were anything else that were not religious a case like this would not have gone all the way to the Supreme Court.
In this case the Chief Justice sent it back to the lower courts. She said that this was a matter of zoning. She could have just said “no, there is no standing here”. However, she sent it back to the lower courts and didn’t mention religion. However, religion is there in this case; the nature of the building was very important.
The Jehovah witnesses a lost because there was an alternative place where they could have their building built that was not in contravention of the zoning laws.
Technically, because there was a choice it was not an infringement on their religion.
Here the court said it is not a reason to invoke freedom of religion to force or to be in contravention of zoning laws.
This is different from the last case. This time the court said that freedom of religion is not superior.
Alberta v Hutterian Brethren of Wilson Colony
This case was about Hutterites in Alberta; they said it was against their religion to have any photographs taken of themselves. From 1973 until the early 2000’s they were exempt from having pictures on their government issued driver’s licenses.
Eventually a new law came in – the Highway Traffic Act. This law was to counter identity theft, and required everyone to have their picture taken for their driver’s licenses.
The second commandment of the Jehovah witness religion said that they could not have their pictures taken.
If we run the analysis properly… What is the analysis?
We know that in terms of jurisdiction the law was okay.
What was the purpose of the Act? Is it secular or religious, and is it an infringement on Section 2(a)? The Act is a secular. It has nothing to do with religion and is to counter identity theft.
We then move on to our second step.
What is the effect of the Act? The consequence is that it does discriminate.
Clearly, the Hutterites sincerely believed that not having photographs of themselves was part of their religion (similar to Anselem), and the court unanimously said that there was a violation of Section 2(a).
We have seen we talked about the Oakes Test and the two last portions of it – minimal impairment, and proportionality – …
Chief Justice McLachlin said that there was a violation of Section 2(a); however, there was a substantial objective – it was important enough to reduce identity theft. Furthermore, there were alternatives available to the Hutterites; they could have someone else drive them, for example, if they did not want a license.
Therefore, it was not held to be enough of an impairment that the law should be struck down. The law was upheld under Section 1, because in a free and democratic society it is more important to combat crimes such as identity theft than a violation which had minimal impact on these people’s freedom of religion.
This is because no one was coercing them to take a picture. They could have an alternative way of getting around. That was enough not to infringe their religion.
Bruker v Marcovitz [2007] 3 SCR 607
he couple in this case were civilly married under Canadian law. The same couple was also married under Jewish law. Eventually the couple wanted a divorce. The husband granted his wife a divorce under Canadian law, but is not grant a divorce under Jewish law.
Under Jewish law, if a divorce is not granted the woman cannot get a “get” and she is therefore chained by marriage, and any other union that she may have in the future would be considered adulterous.
This has massive consequences for women, and they can be shunned from their communities.
The husband, when he granted the divorce in civil law he also promised through contract to give her the “get”. However, he waited 15 years. 15 years later his wife brought him to court over his contractual obligation.
The husband argued that it was on the basis of freedom of religion that he did not want to award her the divorce. He said that this was freedom of exercise of his religious belief not to grant her a “get”.
Unlike in Anselem, the Court said that the husband was bound by his contract.
This is completely contrary to that other case.
The court said that if it is not contrary to a public purpose they should enforce that contractual obligation.
However, the contractual obligation in Anselem was not contrary to public purpose. That’s the problem.
There is not really any difference between the two cases, but the outcome is different.
The husband in this case was forced to give his wife the divorce, and he was bound by his contractual obligation.
This case was later than Anselem, so, we believe that it would be the law of the land now. However, we don’t know.
Multani v Commission Scolaire Marguerite-Bourgeoys [2006]
Here, we have a case of a student of Sikh religion that believes that he needs to be wearing his Kirpan at all times.
The issue was within the school setting there were rules about having weapons; students were not allowed to have weapons at school. This makes sense because it would be a public danger otherwise.
What analysis did the court run?
The court went back to Anselem, and said that if this is an individual intrinsic belief within the student and his own vision of religion that he needs to have the dagger, then the rules prohibiting carrying weapons is an infringement of his religion.
There is a Section 2(a) infringement.
There were other students that were symbolic wooden Kirpan, and they accepted that as a substitution to having a real weapon. The student, however, in this case said no to this.
So, this is where Anselem is important. Even if a panel of Sikh experts were to say that it would be okay for him to have a wooden dagger it would not matter. The court does not care about expertise on religious grounds. It cares about internal belief.
The remedy by the court was a compromise; this was to prevent even further infringement of freedom of religion. They would allow the student to have the dagger in a wooden case sewn into the student’s clothing. The student accepted this, and this is how the case got resolved.
What is interesting in this case is the majority opinion of the Court. It was about a safety component. They said that the degree of danger varied according to place. For example, in an aircraft or a courtroom a Kirpan would not be allowed at all.
In other words, the Court picks and chooses where the accommodation is reasonable or not.
This is why the Charter in Canada is very popular – people feel protected by the court. Interpretation of the Charter is so liberal and so wide, and Section 1 is so limited… People feel like they are really understood.
Zylberberg v Sudbury Board of Education [1988]
This case was about a public school that opened and closed each day with religious exercises consisting of reading scriptures or other suitable readings and repeating the Lord’s prayer, or other suitable prayers.
If parents wished, their children were excused from the classroom during the exercises or were not required to participate, or bow their heads.
Here’s the Court said the rule was broad enough that it could be considered nonsecular in a way, although it was directly touching on the topic of religion. The fact that parents could say that they did not want their children to participate, or the children themselves could step out…
Some children, however, would still become involved in prayer because they felt peer pressure. This is what the court is afraid of.
The fact that the law itself wasn’t imposing religion on students was irrelevant; students would feel peer pressure to participate in rituals. Therefore, this is a form of coercion.
We know that freedom of religion is protected from coercion by the state.
This was found to be unconstitutional and could not be saved by the fact that it was broad enough to authorize non-Christian prayers and readings.
These cases with regards to religion become even more interesting when we talk about Section 93 and denominational schools.
Adler v Ontario 1996
Section 93 is no longer enforceable in Québec and in Saskatchewan, but remains enforceable in Ontario and Alberta.
What happens here is that not only do we have the right to have those religious schools, but you will also get the support and funding from the government. However, Adler v Ontario 1996 tells us that it will only be limited to Protestant and Catholic schools.
Also, remember that there is no duty of the province to fund the schools. Adler v Ontario argued that there is a duty for the provincial government to support these schools. It was found, however, that there was in fact no duty.
It is important that you understand that these schools still have to be within accordance with Section 93, and the province has oversight of the curriculum to make sure that the curriculum is up to national standards. They cannot do whatever and however they want.
B(R) v Children’s Aid Society of Metro Toronto [1995]
You have a child that grows up in a society that is multicultural; the child is raised by not only an identity that is given birth, but also evolves in a context that will nurture its own identity. So, you are given a religion, but then you also evolve in that culture.
It is very hard for parents to educate children in a secular state in accordance with their own beliefs. Sometimes there is a clash.
That is where the Charter comes into play.
This case was about Jehovah witnesses whose child needed a blood transfusion; the child’s hemoglobin level started to decrease to the extent the child needed a blood transfusion.
The parents refuse the blood transfusion, so the doctors went to court to get a court order to carry out the blood transfusion. The doctor succeeded. The parents then said that this was an infringement of the religious beliefs, and that they had a right to raise their child in accordance with their own religious beliefs.
Justices Iacobucci & Major said: “A parent’s freedom of religion does not include the imposition of the child of religious practice which threaten the safety, health, or life of the child.”
When it comes to the safety of the child Section 2(a) can be limited by Section 1.
In this case the Children’s Society of Canada stepped in because they believed the life of the child was in danger.
What is interesting in this case is that you have parental authority, but the authority is suspended because they are not acting in the best interests of their child.
The transfusion was given. Afterwards the child was returned to the parent’s custody. The parents went ahead and brought a Charter case following this.
The court said that the parents have freedom of religion to educate their parents as they see fit. This right falls under Section 2(a). However, it is not an absolute right.
Parents liberty includes the “right to nurture a child, to care for its development, and to make decisions for the child in fundamental matters such as medical care”. However, the state can properly intervene where parents conduct falls below the accepted threshold, and in such cases is limiting the constitutional rights of the parents, not vindicating rights of the child.
In this case the court felt that the parental rights fell below the threshold required of them, and the child is in danger.
Because this was a life or death situation, the child’s situation goes above parental rights and religious freedom.
If you were to run a Section 1 analysis, there is a pressing and substantial objective. The life and safety of a child is higher on the list than the freedom of religion of the parents.
