Fundamental Freedom: Religion PDF

Fundamental Freedom: Religion LAWSC2502C Ryan Koo [email protected]  Step 2: Charter Step 3: Section 1 Step 1: Charter right is infringed...

Fundamental Freedom: Religion LAWSC2502C Ryan Koo [email protected]  Step 2: Charter Step 3: Section 1 Step 1: Charter right is infringed test (aka “Oakes” claim is made (prima facie test) infringement) Claimant Defendant (aka governments) Charter remedies 52 (1) of the Constitution Act, 1982: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 24 (1) of the Charter: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Application of Oakes test: COVID-related Charter Litigation Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219 Taylor v. Newfoundland and Labrador, 2020 NLSC 125 Jacob v. Canada (Attorney General), 2024 ONCA 648 Section 2 of the Charter “2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”  https://www.cbc.ca/player/play/video/1.7130 313 https://youtu.be/zAPF1M- IuA0?si=L5NASXFpxIp_KHPk Bill 21: Why Quebec’s controversial bill was ruled constitutional | Power Play with Vassy Kapelos (youtube.com) Discussion Question #5: Did the Quebec government go too far? Purpose Freedom of religion has been defined as “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination” (Big M Mart) To prevent interference “with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being” (Edwards Books) Is linked to the Charter’s commitment to equality and the protection of minorities. Big M Mart R. v. Big M Drug Mart Ltd., 1 SCR 295 Big M Drug Mart was a store in Calgary that did not close on Sundays. The store was charged with unlawfully carrying on the sale of goods, on Sunday, May 30, 1982 in Calgary, Alberta, contrary to the Lord’s Day Act, which stated that selling goods or conducting business on Sundays was unlawful. The Act reflected the Christian tradition of reserving Sunday as a day of rest “The Act gives the appearance of discrimination against non-Christian Canadians. Religious values rooted in Christian morality are translated into a positive law binding on believers and non-believers alike. Non-Christians are prohibited for religious reasons from carrying out otherwise lawful, moral and normal activities” “The power to compel, on religious grounds, the universal observance of the day of rest preferred by one religion is not consistent with the preservation and enhancement of the multi-cultural heritage of Canadians recognized in s. 27 of the Charter” Scope Religion typically involves (Amselem): a particular and comprehensive system of faith and worship the belief in a divine, superhuman or controlling power freely and deeply held personal convictions connected to one’s spiritual faith, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith The Supreme Court of Canada has interpreted section 2(a) broadly. Protects even those religious practices that are harmful to the rights of others (Whatcott) SINCERITY: Amselem Syndicat Northcrest v. Amselem, 2004 SCC 47 A group of individuals were all Orthodox Jews They owned condominium units in in Montreal, Le Sanctuaire du Mont-Royal (Sanctuaire). They wanted to set up “succahs” on their individual balconies for the purposes of fulfilling the biblically mandated obligation of dwelling in such small enclosed temporary huts during the annual nine-day Jewish religious festival of Succot. The Sanctuaire denied a request to erect succah, but upon intervention by the Canadian Jewish Congress, proposed setting up a communal succah in the Sanctuaire's gardens. The individuals rejected and proceeded to set up individual succah on their respective balconies. In response, the Sanctuaire filed an application for permanent injunction prohibiting the Appellants from setting up succahs and, if necessary, permitting their demolition. SINCERITY: Amselem “Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious ‘obligations’ to be, it is inappropriate to require expert opinions. It is also inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held” SINCERITY: Amselem “On the issue of sincerity, the trial judge correctly concluded that the appellant A sincerely believed that he was obliged to set up a succah on his own property. The appellants K and F submitted expert evidence of their sincere individual belief as to the inherently personal nature of fulfilling the commandment of dwelling in a succah. Such expert testimony, although not required, suffices in positively assessing the sincerity and honesty of their belief. Lastly, the interference with their right to freedom of religion is more than trivial and thus, leads to an infringement of that right” Discussion Question #6: Would you agree with the Supreme Court’s approach and broad interpretation of s. 2(b)? Analytical Framework (Amselem) Does the claimant sincerely believe in a belief or practice that has a nexus with religion? (subjective inquiry) Claimants must show they sincerely believe that a belief or practice is required by their religion. The belief must be asserted in good faith, and must not be capricious or an artifice No need for evidence demonstrating the validity of the beliefs or that the claimant’s beliefs conform to official religious doctrine Does the challenged state measure interfere with the claimant’s ability to act in accordance with her religious beliefs, in a manner that is more than trivial or insubstantial? (objective inquiry) Claimants need to show some objective evidence of state interference with the observance of their religious practice “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct (Hutterian Brethren) Practice Question Ryan, aka the “Hot Smoker,” was charged with trafficking in cannabis and possession of cannabis for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act He is a member of the Church of the Universe and the G13 Beaches Mission of God. It is his religious belief that cannabis provides him with a direct connection to God and that it is a sacrament He believes that cannabis is God's "Tree of Life," and that God's children have a right to use it as a sacrament in their lives and worship Ryan challenges the constitutionality of the provisions as they limit his right to freedom of religion under s. 2(a) of the Charter How would the court apply the established framework governing s. 2(a) of the Charter and what would the court’s conclusion look like? Scope – limitations Could go beyond major, established religions, but is not without limits Grizzly Bear Spirit (Ktunaxa) Competing rights or interests had to be reconciled (remember section 1?) B. (R.) Trinity Western University NEW RELIGION?: KTUNAXA NATION KTUNAXA NATION v. British Columbia, 2017 SCC 54 Ktunaxa Nation claimed that the proposed ski resort lies at the heart of a sacred area of paramount significance called Qat’muk, which is the Grizzly Bear’s spiritual home Permanent human occupation of Qat’muk would cause the Grizzly Bear Spirit to leave and, thereby, profoundly harm the identity and culture of the Ktunaxa The Ktunaxa argued that the approval of the master agreement for the ski resort violated their freedom of religion, contrary to s. 2(a) of the Charter NEW RELIGION?: KTUNAXA NATION First inquiry: “The Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit. They also believe that permanent development in Qat’muk will drive this spirit from that place” Second inquiry: “The Ktunaxa must show that the Minister’s decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. Yet the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it” LIMITATIONS: B.(R.) B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1 SCR 315 S.B. was a premature baby. Her hemoglobin level dropped to such an extent that the attending physicians believed that her life was in danger and that she might require a blood transfusion to treat potentially life-threatening congestive heart failure Her parents, as Jehovah's Witnesses, objected to blood transfusion for religious reasons Pursuant to the Ontario Child Welfare Act, the Children’s Aid Society applied for and was granted a wardship order depriving the parents of the right to refuse the medical treatment for S.B LIMITATIONS: B.(R.) “While the purpose of the Act, the protection of children, does not infringe on the appellants' freedom of religion, the legislative scheme it implements, culminating in a wardship order depriving the parents of the custody of their child, seriously infringed on the appellants' freedom to choose medical treatment for their child in accordance with the tenets of their faith” However: Protecting children at risk is a pressing and substantial objective “The Act allows the state to assume parental rights when a judge has determined that a child is in need of treatment that his parents will not consent to…the process contemplated by the Act is carefully crafted, adaptable to a myriad of different situations, and far from arbitrary. The Act makes provision for notice to be given, for evidence to be called, for time limits to be imposed upon Crown wardship and other orders, as well as for procedural protections to be afforded to parents. The restrictions the Act imposes on parental rights are, in my view, amply justified” LIMITATIONS: Hutterian Brethren Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 In 2003, Alberta adopted a new regulation requiring all persons who drive motor vehicles on highways to hold a driver’s licence with photography The new regulation meant that the Wilson Colony Hutterites must choose between holding a valid driver’s licence or following their sincerely held religious convictions The Wilson Colony Hutterites believed that permitting their photo to be taken violates the Second Commandment: “You shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath or in the water under the earth” (Exodus 20:4) Photographs are “likenesses” within the meaning of the Second Commandment, and they wanted nothing to do with their creation or use LIMITATIONS: Hutterian Brethren Both inquires, in the Court’s view, appeared to be met. However (remember section 1 justification): “The universal photo requirement is rationally connected to the objective. The Province’s evidence demonstrates that the existence of an exemption from the photo requirement would materially increase the vulnerability of the licensing system and the risk of identity-related fraud” “The objective of the driver’s licence photo requirement is not to eliminate all identity theft in the province, but rather to maintain the integrity of the driver’s licensing system so as to minimize identity theft associated with that system. Within that system, any exemptions, including those for religious reasons, pose real risk to the integrity of the licensing system” “The negative impact on the freedom of religion of Colony members who wish to obtain licences does not outweigh the benefits associated with the universal photo requirement. The most important of these benefits is the enhancement of the security or integrity of the driver’s licensing scheme” LIMITATIONS: Trinity Western University Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 Trinity Western University (TWU) is a private Christian university located in British Columbia All students and faculty at TWU must follow a religious-based code of conduct, known as a “covenant”, that allows sexual intimacy only between a man and a woman who are married TWU had long sought to open a law school. This proved to be contentious in the legal community due to the covenant The Law Society of British Columbia and the Law Society of Ontario decided not to accredit TWU’s proposed law school LIMITATIONS: Trinity Western University Both inquires, in the Court’s view, were met: “Evangelical members of TWU’s community have a sincere belief that studying in a community defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development. This belief is supported through the universal adoption of the Covenant, which helps to create an environment in which TWU students can grow spiritually” “By interpreting the public interest in a way that precludes the accreditation of TWU’s law school governed by the mandatory Covenant, the law societies have interfered with these beliefs and practices in a way that is more than trivial or insubstantial” LIMITATIONS: Trinity Western University However: The decision “only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant. This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for prospective TWU law students” “On the other side of the scale, the decision significantly advanced the statutory objectives by ensuring equal access to and diversity in the legal profession and preventing the risk of significant harm to LGBTQ people” The decision “means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm” The law societies “chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices”