Supreme Court of Canada Adopts Broad View of Religious Freedom
By Terrance S. Carter and Nancy E. Claridge, Carter
& Associates
October 12, 2004
Following on the heels of the Federal Court of Appeal's decision in Fuaran
Foundation v. Canada Customs and Revenue Agency, 2004 FCA 181 (the "Fuaran
Foundation decision"), which narrowly construed the practices constituting
"advancing religion" in the charitable sense, the Supreme Court of Canada
said the State cannot regulate personal religious beliefs. The landmark 5-4
ruling in Syndicat Northcrest v. Amselem, [2004] S.C.J. No. 46, 2004 SCC 47
(the "Amselem decision"), held that when courts undertake to analyze 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, "they enter forbidden domain." This greatly impacts religious
freedom in Canada.
At issue in the Amselem decision was the ability of Orthodox Jews to erect religious huts on the balconies of their individual condominium units during the festival of Succot, the practice of which was opposed by the luxury condo's management. Such a structure was said to violate the terms of the condo's by-laws in the declaration of ownership by constituting a safety hazard and reducing the property value. The Quebec Court of Appeal affirmed a permanent injunction prohibiting the Appellants from setting up succahs and, if necessary, permitting their demolition.
Supreme Court of Canada's decision
Justice Iacobucci, writing for the majority, found that the trial judge and the Court of Appeal took a "dubious, unwarranted and unduly restrictive" view of religious freedom, stating that its basic principles consist of "the freedom to harbour beliefs and undertake practices, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or in conformity with the position of religious officials." Consequently, Justice Iacobucci held that both obligatory and voluntary expressions of faith should be protected under the Charter, and an inquiry into the mandatory nature of an alleged religious practice is both inappropriate and plagued with difficulties. Justice Iacobucci explained that those advancing a freedom of religion claim must show the court that:
- 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 in conformity with the position of religious officials; and
- he or she is sincere in his or her belief.
Once religious freedom is triggered, a court must ascertain whether there has been sufficient interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion. It will suffice for a claimant "to show 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." However, harmful conduct or conduct interfering with the rights of others will not automatically be protected; the ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the conflict's context.
Implications of this decision
In the increasingly politicized environment concerning religious freedom, be it questions of religion in schools or same-sex marriage, there are several important implications to draw from the Amselem decision in addition to it being the first time that the Supreme Court of Canada has given a definition to religion.
First, it is an affirmation by Canada's highest court of the paramountcy of
religious freedom. The decision makes clear that religious practice, as opposed
to religious belief only, must be accommodated and cannot be easily trumped
by matters of taste or personal preference of others impacted by that religious
practice. Second, it provides a clear test to determine when freedom of religion
is triggered. Third, the decision does away with the distinction between obligatory
and optional in the protection of religious freedom. This could have a significant
impact in other situations, such as those where public officials deny Christians
the right to assemble for Bible study and/or prayer because it is considered
an optional religious practice. Fourth, it makes clear that the State and judges
must not inquire into the validity of an individual's religious beliefs or practices,
which may impact the extent to which Canada Revenue Agency can consider what
constitutes advancing religion when reviewing applications for charitable status
on those grounds. Finally, in certain situations, the decision enables the religious
freedom protections found in provincial and federal charters or bill of rights
to prevail over declarations of co-ownership and similar contractual documents.
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Readers are advised to consult with a qualified lawyer and obtain a written
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This summary article first appeared in Lawyers Weekly and is reprinted
with permission. To view the full article, visit: www.carters.ca/pub/bulletin/charity/2004/chylb51.htm.
