In this issue:
Freedom of Religion; Eruvim; Separation of Church and State; Municipal Law; Charter of Rights and Freedoms; Duty to Accommodate Religious Beliefs
For traditional or Orthodox Jews, the Sabbath is the most holy day in the Jewish calendar, surpassing even Yom Kippur. As part of their observance of the Sabbath they accept a number of restrictions and obligations set out in Jewish law. One of these restrictions is that in the absence of an eruv they may not carry objects between private domains (such as a home) and public domains (such as public roads). This prohibition on carrying objects between private and public domains can essentially prevent families with young children (who need to be carried or pushed in a stroller) from attending synagogue. However, through the concept of the eruv (a Hebrew word meaning to mix or join together), the public space contained within the set boundaries of an eruv is deemed to be a single private domain for the purposes of Jewish law. Therefore the prohibition against carrying objects does not apply within it.
In many communities in Canada, Orthodox Jews maintain eruvim, the boundaries of which are marked by barely visible wires or strings which run between buildings and other structures (with the consent of the owners). One such community is the City of Outremont, Quebec. In response to recent complaints from some residents, the City had adopted a practice of dismantling any eruv wires that were brought to its attention. When the City refused to abandon this practice, some Jewish residents brought this petition to the Court, alleging interference with the exercise of their freedom of religion.
An interim injunction was granted to prevent the City from dismantling eruvim wires during the Jewish festival of the Passover, as the City had done during the high holiday of Rosh Hashanah in the previous year.
This case—widely known as the eruv decision—considers whether a doctrine of "neutrality" towards religion prevents the state from accommodating the religious practices of its citizens. The Court ultimately rejected the City's claim that permitting the Orthodox community to erect eruv wires would amount to promoting Orthodox Judaism. To the contrary, the Court determined that the Charter protection of religion requires the City to accommodate this religious practice of the Orthodox community. While the City may regulate the practice, it may only do so in a manner to facilitate (and not restrict) this religious exercise.
The Court granted in part the relief sought by the petitioner Rosenberg and others. It declared that the petitioners are entitled to establish eruvim within the City of Outremont, and install eruv wires with the consent of the owners of the buildings used. The Court further ordered that while the City may not dismantle eruv wires which have been erected, it may in the future regulate their usage, but only in a manner that facilitates the exercise the petitioners' exercise of their freedom of religion.
The City argued that it does not "have jurisdiction to permit anything to be done on religious grounds because of [the City's] secular vocation." Furthermore, it argued that by dismantling eruv wires it is merely regulating public air space and not violating anyone's exercise of freedom of religion. But it also argued that even if its actions violated the petitioners' freedom of religion, that violation is justified by the City's "duty to maintain the public domain accessible to all residents of Outremont on the same basis and without distinction."
The City was supported by the intervenor Mouvement Laique Quebecois who argued that the erection of eruv wires "involuntarily place non-members of the Orthodox Jewish faith within what amounts to a religious enclave with which they do not wish to be associated." They complained that the existence of eruvim violated their freedom from religion by preventing them from going anywhere "without having to confront the fact that they live within an eruv." Finally, the intervenor asserted both that the City has "an obligation to remain neutral in religious matters" which prevents it from "favouring one religion over another", and that if it permitted eruvim the City would be favouring one religion over others.
As a preliminary evidential matter, Justice Hilton noted that there was "not the slightest evidence" that the interim injunction preventing the City from dismantling the eruv wires was the source of any real inconvenience to non-Orthodox Outremont residents. One resident complained that the wires would prevent her from flying a kite in front of her apartment building. On cross examination, she declined to answer the question of whether she has ever tried to fly a kite in front of her residence, or whether she otherwise ever flies kites.
The Court also noted that it had not heard of any other municipality in the world that prevented eruvim, although it had been informed of the presence of eruvim in cities throughout North America and Europe, including other municipalities on the island of Montreal.
In response to the City's argument that "Quebec law mandated absolute religious neutrality and thus prevented it from acceding to the Petitioners (sic) request for accommodation", Justice Hilton stated that:
The Court holds and emphasizes that it considers the City's position in this regard to be wrong as a matter of law. On the contrary, the City has a constitutional duty to provide accommodation for religious practices that do not impose hardship on its residents.
The Court rejected the City's argument that permitting eruvim is equivalent to promoting Orthodox Judaism. Justice Hilton noted that the City was not being asked to expend public funds to advance the precepts of Orthodox Judaism, or associate itself with the erection of eruv wires. Rather, it was asked "to tolerate the barely visible wires or lines traversing City streets." Justice Hilton held that tolerance of the wires is not equivalent to promoting Orthodox Judaism, but is more like the City's tolerance of Christmas decorations on City property and the ringing of church bells on Sunday morning.
The Court was thus satisfied that the City was not being asked to promote a religion, but rather to accommodate a religious practice. And accommodating religious practice is its legal duty in the face of others' right to freedom of religion.
While the City was correct in its assertion that freedom of religion, like other Charter rights, can be limited where necessary for the proper functioning of a free and democratic society, it failed to provide a convincing argument of why it would be necessary to limit freedom of religion in this case. In particular, it failed to adduce evidence of "any consequential havoc" in other municipalities that permit eruvim.
In the result, the Court recognized the Petitioners' right to erect eruv wires where owners of buildings consent. It also recognized the City's jurisdiction over the public domain, such that it is entitled to regulate the erection of eruv wires with respect to such matters as the height of the structures, and the number of wires which might be erected on any given street. The power of regulation, however, must be exercised so as to facilitate and not hamper the exercise of the Petitioners' rights. That is, the City is to use its regulatory power to prescribe details on how to lawfully erect eruv wires, rather than to prevent them.
"Legal proceedings that assert claims based on freedom of religion are bound to excite passion. This is one such case." Thus begins Justice Hilton's reasons for judgment. In a case like this, it is helpful to ask why it is that we should expect passions to be raised. What are the interests that the parties believe to be at stake?
First, consider the position of the petitioners—the Orthodox Jews who sought to prevent the City from dismantling the eruv wires. The presence of eruvim are necessary to enable many Orthodox Jews to participate fully in the life of their religious communities, while observing the Sabbath regulations of Jewish law. Without eruvim, many Orthodox Jews—especially the elderly, the disabled, and those with young children—would be unable to leave their homes in good conscience to participate in corporate worship. They are thus physically separated from their communities and prevented from joining in worship during the most religiously significant day in their calendar.
Of the many different aspects of human well-being, one aspect is the religious. The importance of religion is underscored throughout Canadian law, most notably in the Constitution. On one definition, religion is an attempt to ascertain whether there is a universal order of freedom and reason, and to align oneself with that order. If such a universal order exists, then a person's well-being is harmed to the extent that he or she is prevented from conforming to that order (e.g., in the present case, prevented from participating in corporate worship). Conversely, a person's well-being is promoted when he or she is assisted (or at least not hampered) in the pursuit of that order. The free exercise of religious faith is therefore profoundly significant to individuals, and Hilton J understood that the Canadian Charter, the Quebec Charter, and the common law all presuppose the importance of freedom of religion.
In previous commentaries we have been critical of adjudicators who have misunderstood the significance of the particular religious practices before them (see LexView 38.0, Brillinger v. Brockie). This misunderstanding often results from not asking about the purpose of either those specific religious practices, or of religion in general. However, in this case Justice Hilton makes no such errors. Instead, he sensitively considers the purpose behind Sabbath Day observances—and this is key—from the perspective of the petitioners (Orthodox Judaism) rather than from some other branch of Judaism (or indeed some other religious tradition). Given the tendency of some judges and human rights adjudicators to treat all religious traditions as if they were the same (in addition to Brillinger v. Brockie, above, see R v. Laws (1998) 41 OR (3d) 499 Ont. CA), Hilton J's attention to the beliefs actually held by the petitioners is exemplary.
Once the significance of Sabbath observance is understood, the City's argument appears plainly unreasonable. The City argued that the petitioners should not seek accommodation from the City (ie seeking that the City leave the eruvim wire intact), but from their own faith; ie that the Orthodox Jews should change their beliefs. Though couched in a sophisticated argument about Jewish law, the City's argument was not substantially different from the more vulgar argument overheard (and reported) by the press in the courtroom gallery—that Orthodox Jews should change their faith to bring it into line with the norms of contemporary non-Jewish society. Such a demand is clearly inconsistent with genuine pluralism and the Charter's recognition of both religious freedom and multiculturalism.
The stakes for the Orthodox petitioners are thus plain enough. But what about the City administrators and the complainant residents of Outremont? What is it about this case which raises their passions?
A dominant concern of the complainant residents is that the presence of eruv wires places persons within a "religious enclave" against their will. It is hard to make sense of this objection. As the judge noted, for anyone who does not understand him/herself to be bound by Jewish law, the lines or wires demarcating an eruv have no normative significance. The wires cannot, in themselves, have the effect of subjecting persons to a religious law that they do not accept as their own.
For the non-Jew, the wires are at most a reminder of the existence of a community of religious belief. Why should such an unobtrusive reminder trigger a hostile reaction? From the point of view of the Orthodox Jews, the lines or wires demarcating eruvim only signify the boundaries of a Jewish community for the specific purpose of facilitating their movements on the Sabbath. They are not intended to communicate an exclusive claim to the area, or indeed, to communicate anything at all.
In fact, there was no evidence presented to the Court to establish that the wires had any impact on the lives of the complainants, beyond triggering feelings of resentment. Given the absence of evidence of any inconvenience—let alone hardship—the City understandably focussed its argument on abstract constitutional doctrine. The City argued that it is not permitted to tolerate eruv wires because this would constitute a violation of state neutrality among religions; specifically, freedom from religion of non-Orthodox residents. The City thus advanced a form of the American doctrine of the separation of church and state—a doctrine that has never been part of Canadian law. However, freedom of religion means only that the state cannot compel worship and must remain neutral in its treatment of different religions.
It is, of course, an element of Canadian constitutional doctrine that church and state are separate, in the sense of being separate institutions with different jurisdictions and serving different purposes. However, the Court was right to reject the City's simplistic, anti-religious conception of "secular" which would exclude all incidents of religion under the guise of "neutrality" (see LexView 25.0, 40.0 on the meaning of the "secular"). As Justice Hilton noted, the religious is embedded in Canadian legal institutions: from the reference to the "supremacy of God" in the preamble of the Charter, to the statutory recognition of religious holidays, and tax exemptions for religious institutions. By advancing the position that the City was prohibited from "permitting anything to be done on religious ground because of its secular vocation", the City thus employed a simplistic and erroneous reading of "secular" (which has no purchase in Canadian law) in order to frustrate the religious rights of Orthodox Jewish citizens in Outremont.
The Court held that freedom of religion—contrary to the position argued by the City of Outremont—does not mean that the state may not facilitate religious practice. Indeed, a principle of political morality, which motivates much of Canadian law, is that one of the state's responsibilities is to encourage and assist individuals to lead valuable, worthwhile lives. Because religious practice is one aspect of human well-being, the state has a responsibility to secure the conditions necessary to support persons in their religious practice. The state therefore has a duty not to interfere with—and sometimes an obligation to provide positive assistance to—individuals engaged in religious practice (e.g. in maintaining eruvim, and in establishing religious education and maintaining houses of worship).
The City is of course correct to maintain that religious freedom is not absolute, and that the state maintains the responsibility of preserving the public sphere for the benefit of all persons. Although in this case, the City completely failed to establish any hardship to the public caused by the accommodation of the petitioners. The City's argument from a supposed requirement of neutrality failed both as a statement of Canadian law, and as a principle of sound political morality.
Given the fatuous objections to the eruvim given by the City's witnesses (e.g. interference with kite flying), we are left to speculate at what could be the real reason for the objection. It looks like a simple case of what Harvard philosopher T.M. Scanlon calls "moral bias"— of underestimating the reasons behind other peoples' points of view, and overestimating the costs to oneself of accommodating those reasons. Justice Hilton's judgment provides a correction for this bias.
This issue of LexView was researched and written by:
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.
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Copyright © 2010 Iain Benson and Brad Miller
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