BE CAREFUL WHAT YOU WISH FOR

B’nai Brith Canada wins in landmark Supreme Court case on religious freedoms (B'nai Brith Canada, Press Release, June 30th, 2004)

In a landmark ruling, the Supreme Court of Canada has upheld the rights of all Canadians to follow their religious practices without interference by the courts.

In what is widely seen as an illustration of this point, the Supreme Court of Canada has ruled that Jewish condominium owners in a Montreal building have the right to set up their own personal Succahs, temporary religious huts that are constructed in celebration of the Jewish holiday of Succot. B’nai Brith Canada’s League for Human Rights had intervened in the matter following the initial refusal of the condominium corporation to allow observant Jewish residents to construct individual huts on their own balconies.

Allan Adel, National Chair of B’nai Brith’s League for Human Rights, reacting to the news, stated: “We are satisfied with the decision of the Supreme Court, which has applied a broad interpretation to the Charter guarantee of freedom of religion and believe it to be in the best interests of all Canadians. The Succah ruling is an important, groundbreaking case that champions the cause of religious freedom in Canada and will have important ramifications well beyond the immediate facts of the case.”

But is it? I must break the self-reference prohibition, as I had a minor involvement in the case some months ago. The issue was whether Orthodox Jews could set up religious “huts” during the holiday of Succot on their condominium balconies in Montreal if they violated general condominium rules. At trial, both sides called conflicting rabbinical evidence as to whether such was mandated by the faith. The trial judge found it was not, although he also found the plaintiffs sincerely believed it was.

The Supreme Court held for the plaintiffs. Here is an excerpt from the official synopsis of what the five-person majority, all from (formerly) Protestant English Canada, said:

Freedom of religion under the Quebec (and the Canadian) Charter consists of the freedom to undertake practices and harbour beliefs, 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 is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant's belief, where sincerity is in fact at issue. 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. A court's inquiry into sincerity should focus on a person's belief at the time of the alleged interference with his or her religious freedom. It is 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. Because of the vacillating nature of religious belief, a court's inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person's belief at the time of the alleged interference with his or her religious freedom.

Freedom of religion is triggered when a claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion. Once religious freedom is triggered, a court must then ascertain whether there has been non trivial or non-insubstantial interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the Quebec (or the Canadian) Charter. However, even if the claimant successfully demonstrates non-trivial interference, religious conduct which would potentially cause harm to or interference with the rights of others would 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 underlying context in which the apparent conflict arises.

Three dissenters, all from (formerly) Catholic Quebec, said as follows.

Since a religion is a system of beliefs and practices based on certain religious precepts, a nexus between the believer's personal beliefs and the precepts of his or her religion must be established. To rely on his or her conscientious objection a claimant must demonstrate (1) the existence of a religious precept, (2) a sincere belief that the practice dependent on the precept is mandatory, and (3) the existence of a conflict between the practice and the rule.

The claimant must first show that the precept in question is genuinely religious and not secular. The test is reasonable belief in the existence of a religious precept. To this end, expert testimony will be useful, as it can serve to establish the fundamental practices and precepts of a religion the individual claims to practise. In the second step, the claimant must establish that he or she has a sincere belief and that this belief is objectively connected to a religious precept that follows from a text or another article of faith. It is not necessary to prove that the precept objectively creates an obligation, but it must be established that the claimant sincerely believes he or she is under an obligation that follows from the precept. The inquiry into the sincerity of beliefs must be as limited as possible, since it will expose an individual's most personal and private beliefs to public airing and testing in a judicial or quasi-judicial setting. The sincerity of a belief is examined on a case-by-case basis and must be supported by sufficient evidence, which comes mainly from the claimant. Although consistency in religious practice may be indicative of the sincerity of a claimant's beliefs, it is the claimant's overall personal credibility and evidence of his or her current religious practices that matter. The essential test must be the claimant's intention and serious desire to obey the fundamental precepts of his or her religion. Finally, unless the impugned provisions or standards infringe the claimant's rights in a manner that is more than trivial or insubstantial, the freedom of religion guaranteed by the Charters is not applicable.

Well, it beats France, but surely there are huge problems looming when secular courts define freedom of religion solely with reference to the sincerity of an individual’s belief, however misguided, and ignore the precepts of the religious community he claims to belong to. To illustrate, I acted in a very messy custody case several years ago. The parties were Orthodox Jews, but the mother had abandoned the faith, although she disingenuously claimed to still be religious. One of the issues was her refusal to keep the Sabbath and High Holidays during the weekend visits of her very Orthodox twelve and fourteen year old children. Acting for the father, I called rabbinical evidence as to the children’s obligations. My opponent tried to counter with the views on the tenets of Judaism of a very nice Jewish social worker. Against my strenuous objections, the Judge, who had little time for religion generally, allowed the evidence in and was clearly delighted to hear the lady testify that it really didn’t matter much what any Jew did or didn’t do because Judaism was “something inside of you”. Needless to say, the Judge ruled for Mom on that point and forced the children to break the firmest laws of their community every second weekend.