In this issue:
Religion; freedom of conscience and religion; section 2(a); the Charter of Rights and Freedoms; section 3 of Charter of Human Rights and Freedoms (Quebec); co-ownership agreements; validity of religious belief; sincerity of religious belief; trivial or insubstantial infringement
Moise Amselem is an Orthodox Jew who was living in one of two luxury buildings known as "Le Sanctuaire du Mont-Royal" (the "Buildings") in Montréal. He, his wife, and other Orthodox Jews living in the Buildings (the Appellants in the case) wished to set up a "succah" on their balconies for the purpose of fulfilling a biblically mandated obligation during the Jewish festival of Succot. A succah is a small hut, open to the heavens, in which Jews dwell temporarily during Succot, which lasts 9 days. The festival commemorates the 40 years during which the Children of Israel wandered in the desert and lived in temporary shelters.
In September of 1996, the syndicate of co-ownership for the Buildings, Syndicat Northcrest, requested the removal of the succahs, claiming that they were in violation of the Buildings' by-laws. None of the Appellants had read the by-laws before purchasing their individual units. A year later, in October of 1997, Mr. Amselem requested permission to erect a succah on his balcony. Syndicat Northcrest refused.
Syndicat Northcrest offered a communal succah in the Buildings' gardens, together with all other Orthodox Jews residing in the Buildings. This was not satisfactory to the Appellants as it would cause extreme hardship with their religious observance and be contrary to their personal religious beliefs which they said demanded that each construct and reside in their own succah.
Syndicat Northcrest filed an application for a permanent injunction, which was granted on June 5, 1998. The majority of the Court of Appeal agreed with the trial judge and held that although the Appellants' rights had been restricted, their signatures on the declaration of co-ownership, including by-laws that could prohibit succahs on balconies, had effectively waived their rights.
This case is one of the most important decisions in Canada with respect to the proper interpretation and application of section 2(a) of the Charter of Rights and Freedoms, freedom of conscience and religion. It is as consequential in the development of Canadian religious liberty as R. v. Big M Drug Mart and Trinity Western University v. British Columbia College of Teachers.
The case applies section 3 of the Quebec Charter of Human Rights and Freedoms, which reads:
Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
However, the reasons for judgment given by the Supreme Court of Canada are applicable to the interpretation of section 2(a) of the Charter of Rights and Freedoms, which makes this case important for the whole country. The key issues for examination in this LexView are:
The nine judges of the Supreme Court of Canada were split between a majority of five judges and two dissenting minorities: one of three judges and another of one judge. In this LexView, the focus will primarily be on the majority decision of Iacobucci J. and the contrasting views of the larger dissenting decision, written by Bastarache J.
The Court acknowledged that it may be impossible to precisely define "religion", but concluded that some "outer definition" is useful since "only religious beliefs, convictions and practices rooted in religion, as opposed to those that are ‘secular', socially based or conscientiously held, are protected by the guarantee of freedom of religion". In this respect, the Court stated at para. 39:
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.
The focus of this definition is on the individual nature of religion and religious belief. With that definition, the Court next concluded that freedom of religion is broader than a protection of only objectively recognized belief or practices that are by approved by religious experts or clergy as being obligatory tenets of a particular religion.
In the result, the majority concluded that it should eschew determinations of what a particular religious group or system believes. The court's inquiry should be limited to determining whether a person sincerely believes that a practice is required or necessary and not whether that belief is validly held.
Similarly, the majority concluded that, in fact, so long as a practice or conduct is essentially religious or spiritual, it is eligible for protection, even if it is not mandatory or perceived as mandatory according to a system of religious belief.
These broad conclusions, and the protections they afford, were both driven by and allowed the Court to make the practical observation that religious beliefs are "fluid and rarely static" and that a person's religious beliefs "change and evolve over time".
Having made these sweeping statements that potentially widen protection of religious liberty, the Court then took pains to point out that only interferences with religious belief or practice that are not "trivial or insubstantial" will be proscribed by freedom of religion. In this regard freedom of religion is to be balanced against "overriding societal concerns" since "no right, including freedom of religion, is absolute".
The Court held that the proscription of succahs on balconies interfered with religious practice in a substantial manner and that the Syndicat Northcrest's suggested compromise of a communal succah was not an option since it did not satisfy the religious requirements of the Appellants.
The Court also dismissed the argument that the Appellants had waived their rights since any such waiver was not plain and unconditionally understood. The Court was careful not to determine whether the waiver of a constitutional right was theoretically possible, leaving that issue for another day.
In the result, the Court granted the appeal and allowed the Appellants to set up their succahs.
The dissenting minority differed fundamentally on what religious practices are entitled to receive protection, holding that "religious precepts constitute a body of objectively identifiable data". Practices must therefore be accepted and required (i.e. be mandatory) as part of an established religious system. Otherwise, they are not entitled to receive protection.
1. What does "religion" mean for the purposes of protecting religious freedom?
The Court's broad definition includes the expected elements of belief in a divine or superhuman being and the development of a relationship between humankind and that being. Importantly, the definition also includes a specific reference to personal beliefs and a personal relationship with the divine.
This definition fails to properly note the importance of religion in its communal dimension. It is good that it is broad and does not define religion too narrowly. In so far as it is broad, the Court's definition is more likely to provide religious protection for all Canadians with religious beliefs, regardless of the peculiarity of such beliefs. It recognizes that, at its core, religious liberty is a personal freedom. This broad (admittedly potentially too broad) definition allows for the most robust protection as it focuses appropriately on the individual.
While it is necessary to have a concept of "religion" in order to protect "freedom of religion", this definition is also restrictive in that it does not acknowledge the parallel freedom of conscience. Both section 2(a) of the Charter of Rights and Freedoms and section 3 of the Quebec Charter of Human Rights and Freedoms guarantee freedom of conscience equally with religion. If it is to be distinguished from freedom of religion, the element of a belief in and relationship with the divine may be unnecessary in construing freedom of conscience. As such, the combination of these rights may make unnecessary the element of "god" or the divine. The court, however, has said that with respect to "religion" divinity is essential.
Freedom of conscience that is detached from religion will still be based, at some level, on belief and faith claims and moral judgment, though they may not be explicitly derived from divine revelation. It will be interesting to watch future cases for the development of such protection for atheistic, agnostic or other purportedly non-religious conscience claims. This decision sets the stage for such decisions to be made, given the clear focus on individual belief, which as a concept, is readily transferable to individual conscience.
2. Must a religious belief or practice be widely held or a formal tenet of an established religious body in order to receive protection?
This is the element of the decision with which the majority and dissenting minority most pointedly broke. In order to protect freedom of religion, the dissenting justices would require an established religious precept, more likely to be attached to a traditional and structured religious body.
The majority correctly identified that such an approach would require the courts to delve into the validity of espoused beliefs and religious practices. If religious beliefs and practices are to be protected only if accepted by a larger collective body of adherents, the court must inquire as to what the larger collective body believes. This requires the courts to interpret religious texts and place its imprimatur on the proper interpretation of religious issues, much as the court mistakenly did in Hall (Litigation Guardian of) v. Powers. In that case, the Ontario Superior Court of Justice compelled a Catholic high school to allow a gay student to bring his same-sex date to the prom because the "conduct in question . . . [did not go] to the essential denominational nature of the school".
Additionally, the minority approach would remove protection from individuals and provide an advantage to established religions over newly found or unusual beliefs. If such a constitutional regime were in place in 1517 in Wittenberg, Martin Luther's new ideas contained in the 95 theses would not likely have received the protection of freedom of religion given that they were not yet accepted by any established religion. In other words, such an approach assumes that there is no acceptable religious doctrine or divine revelation, except when agreed by a large and organized group of adherents. Regardless of whether one agrees with Luther or any other teacher of new doctrine, freedom of religion is only meaningful if it allows for the possibility of additional or future divine revelation or personal adherence to beliefs that others may find marginal or bizarre. At various points in history most religions have had to wrestle with how to deal with dissenters—and when politics or law come to occupy the place of religion, they too must learn how to deal with dissent.
The majority correctly identified that religion is fluid in people's lives and varies with personal belief and perceptions of divine revelation. Protecting only established beliefs makes the state the arbiter of what is accepted and protected belief and practice. A robust personal freedom must allow for individualism in religious belief and practice.
3. Must a practice be religiously mandatory in order to receive protection?
The Court extended its liberal approach to the interpretation of freedom of religion in general to the question of what constitutes religious practices in particular. It determined that a religious practice need not be considered mandatory by an established religious body or the adherent to receive protection. The Court accepted that the "religious or spiritual essence of an action" attracts protection, without inquiry whether the practice is theologically optional.
As noted by the Ontario Court of Appeal in R. v. Laws, there is no basis upon which a court can "distinguish between a requirement of a particular faith and a chosen religious practice". Otherwise, the court would again be engaged in assessing the validity of religious practice and determining what is truly the subject of worship and dogma. It would objectivise religious practice, moving it towards one in which the courts would have to determine dogma—something in which the courts have correctly been wary of becoming involved.
The dissenting minority would have required that religious practice be obligatory to be protected. Again, this would lessen the subjective protection and individual liberty, and thereby greatly diminish religious freedom.
Freedom is about the ability to make individual choices. Freedom of religion must include making religiously based decisions about spiritual practices. Otherwise, one's individual religious freedom is protected only to the extent that a collective group or external religious authority requires certain conduct. This approach would greatly reduce the benefit of freedom of religion and its robust protection in Canada.
Because the majority of the Supreme Court of Canada commenced its analysis with a definition of religion that focused on the individual, it was correctly drawn to circumscribe freedom of religion around whether the adherent is sincere and not whether the belief or practice is valid. In order to avoid engaging in questions associated with a determination of the correctness or validity of religious belief and practice, the Court properly eschewed questions of whether a practice is mandatory. In so doing, the Court allowed freedom of religion to join freedom of expression as protecting optional human activity that allows for personal fulfilment as determined by free individuals.
The proper recognition of religious practice as an individual pursuit, deserving of individual and individualistic protection does not derogate from its necessary corporate and collective endeavours. Religion is most often pursued corporately in the church, synagogue, temple or mosque. However, the Court's approach in Amselem provides a proper framework in that the alternative is to assume that corporate religion, in any form, is monolithic and homogeneous. As recognized by the Constitutional Court for South Africa in MEC for Education v. Pillay,  ZACC 21 in relation to culture at para.55:
There is a danger of falling into an antiquated mode of understanding culture as a single unified entity that can be studied and defined from outside. As Martin Chanock warns us:"The idea of culture derived from anthropology, a discipline which studied the encapsulated exotic, is no longer appropriate. There are no longer (if there ever were) single cultures in any country, polity or legal system, but many. Cultures are complex conversations within any social formation. These conversations have many voices."
Cultures are living and contested formations. The protection of the Constitution extends to all those for whom culture gives meaning, not only to those who happen to speak with the most powerful voice in the present cultural conversation.
The same is true of religion. One's individual choice leads to a communal engagement experience, but this does not subject the individual to the collective such that the group becomes more important than the person. Nor does it render the communal aspect irrelevant if it is understood how important both aspects are to the right in question. An assumption that a cultural or religious group is monolithic could subjugate the individual and every individual whose beliefs and practices are more nuanced than or partly dissenting from the majority within the group.
4. Will all interference with religious belief or practice be prohibited by freedom of religion?
Early decisions of the Supreme Court of Canada eschewed internal limits to the protection of freedom of religion in section 2(a) of the Charter. A general summary of this approach was described by La Forest J. at pages 383-385 of B(R) v. Children's Aid Society of Metropolitan Toronto:
This Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter; see R. v. Jones, supra, and R. v. Edwards Books and Art Ltd., supra. A similar approach was taken in the context of s. 2(b) of the Charter, freedom of expression. . . .
In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights.
In Amselem, the court cited some of the same cases (Jones and Edwards Books) for the proposition that trivial or insubstantial consequences are not protected. This is the one exception to the call for strong religious freedom of protection in the decision and it may seem churlish to complain about a minor element of such a well-reasoned majority decision.
However, a legitimate concern arises when the Court states that no rights are absolute together with a refusal to protect "trivial or insubstantial" infringements within section 2(a). This could be used in future cases to avoid a proper balancing of rights under section 1 of the Charter.
Whether an infringement is trivial will be in the eyes of the beholder. As a general statement about religion, this was accepted by the court in all but the following respect. If a person commences legal action to protect a religious practice from state interference, it is a reasonable presumption that the infringement is not trivial to that person. The religious practice should be given due respect and not be subjected to a test of triviality in the eyes of the court. Many religious practices themselves may seem strange and trivial to the non-adherent, which is why protection should be subjective and robust. Any infringement should be justified by the state, which is most effectively done under section 1 of the Charter and all interpretations should recognize that religion is not just for the person but also for the community of which the person is a part. That is one of the reasons why "religion" as a charitable heading is understood to be for the "public benefit."
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, writing, and editing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.
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