CONSTITUTIONAL LAW 1 What is the Constitution?

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CONSTITUTIONAL
LAW
35 FREEDOM OF RELIGION:
RESTRICTION AND
ACCOMMODATION
Shigenori Matsui
1
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
2
 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
3
 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.
4
 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
5
 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
6
I Sunday Observance Law
 R v. Big M Drug Mart Ltd, [1985]
7
 “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.”
8
 “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. ”
9
 “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.”
10
 Edwards Books and Art Ltd v. The Queen
[1986]
11
 ““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).”
12
 “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…”
13
 “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.”
14
 “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.”
15
 “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.”
16
 “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.”
17
 Why Sunday observance law infringes the
freedom of religion?
18
 Do you think that Sunday observance law
could be justified under s. 1?
19
 What about the statutory holidays?
 Islamic Schools Federation of Ontario v.
Ottawa Board of Education [1997](Ont. Div.
Ct.)
20
II Restriction or Accommodation?
 Syndicat Northcrest v. Amselem [2004]
21
 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 selfdefinition 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.”
22
 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…”
23
 “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.”
24
 “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 nontrivial.
 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.”
25
 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.”
26
 “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.”
27
 “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
28
the general aesthetics of the property.”
 Multani v. Commission scolaire
Marguerite-Bourgeoys, [2006]
29
 “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.”
30
 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.
31
 “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.”
32
 “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.”
33
 “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.”
34
 Alberta v. Hutterian Brethren of Wilson
Colony [2009]
35
 “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.”
36
 “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. ”
37
 “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.”
38
 “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.”
39
 “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”
40
 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.
41
 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.
42
 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.
43
 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.”
44
 “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.”
45
 How can you reconcile Amselem and Multani
decisions with Hutterian Brethren decision?
46
 Does freedom of religion require state
neutrality toward religion or some kinds of
accommodation with religion?

Congregation des temoins de Jehovah de StJerome-Lafontaine v. Lafontaine [2004]
47

Ross v. New Brunswick School District Co. 15
[1996]
48
 Could religious officials refuse to perform civil
or religious same-sex marriage?
49
 Is prohibition and punishment of bigamy or
polygamy justified?
50
 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]

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