I think it is fair to say that the Supreme Court of Canada’s judgment in Syndicat Northcrest v. Amselem is the leading interpretation of the right to Freedom of Religion in Canada. The decision sets out a way for judges to determine how far the law will allow the exercise of religious practices to impinge on the rights of others. As it turns out, not very far.
The case involved a luxury condominium, or co-op (“Syndicate of Co-ownership” or “Syndicat”), in the prestigious Mont-Royal area of Montreal and the Jewish festival of Succot. I know little of the festival of Succot other than what I glean from the Bible, by way of Wikipedia:
On the first day you shall take the product of hadar trees, branches of palm trees, boughs of leafy trees, and willows of the brook.
[…] You shall live in booths seven days; all citizens in Israel shall live in booths, in order that future generations may know that I made the Israelite people live in booths when I brought them out of the land of Egypt
Pursuant to this passage and tradition, some people build small shelters in which they eat and reside for a few days a year.
Moïse and Gladys Amselem, residents of the Syndicat, wanted to construct a small hut on their balcony for the week or so in which the festival runs. Unfortunately, when they bought into the building they had signed (but not read) an agreement which state that co-owners would not “erect thereon constructions of any kind whatsoever” on their balconies. While the Anselems’ request to build a hut on their balcony was denied, the Syndicat was prepared to allow the couple to build communal structure in the adjoining garden, but this accommodation was declined by the couple.
Legal Protections of Religion, Religious Adherents and Religious Practices
In legal terms, Freedom of Religion usually means the right to practice a religion as opposed to a right to be free of discrimination on the basis of religious affiliation. What is meant by “religion” and “practice” are discussed in this judgment, but I pause here to distinguish “freedom of religion” from the equality protections which prohibit discrimination. In most of Canada, Freedom of Religion is enshrined in the constitution by way of section 2 of the Canadian Charter of Rights and Freedoms (“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.
Section 15 of the Charter, “Equality Rights”, is designed to prohibit negative treatment of individuals on the basis of association with a particular group, including religion. It is important to note that the Charter guarantees equality with respect to government action only. Quasi-constitutional human rights laws provide this protection in other areas such as employment, housing and services.
Different, but related legal analyses apply under the Charter and human rights statutes. For example, under the equality protection in the Charter, a claimant must establish not only that he or she was treated differently on the basis of religion, as is the case under human rights statutes, but also that this treatment put him or her at a disadvantage, or reinforced negative stereotypes.
Quebec is different. Unlike the rest of the Canadian provinces, which follow the common law tradition, la Belle Province is a civil law jurisdiction, meaning, among other things, that it prefers written codes of law above judge-made legal precedent. Quebec enacted its own provincial charter of rights that provides freedom of religion not only with respect to government action, but also in private contracts.
The long and short of all of this is that had the Anselems lived in the province of Ontario, they would have been restricted to demonstrating that the Syndicat, and the agreement they signed, discriminated against them on the basis of religion pursuant to Ontario’s Human Rights Code. Not impossible, but given their consent to the contract which on its face was neutral on religion, may have presented significant challenges.
By virtue of being in Quebec they had the option of claiming the contract impinged their freedom of religion. The case made its way the nine Supreme Court of Canada judges who took this opportunity to clarify what Freedom of Religion means and how it works.
The majority reasons were written by Justice Frank Iaccobucci. The analysis first attempts to define “religion” and then sets out a legal test to establish when and how the practice of religion may not be impeded by others. Very briefly, the test requires the claimant to establish that a he or she holds a sincere belief that the practice is a non-trivial religious practice, and that it does not harm others.
Definition of “Religion”
Before the practice of religion may be protected, logically we would need to know what “religion” is. As any religious studies student will tell you, this is easier said than done. At paragraph 39 of his reasons, Justice Iaccobucci acknowledges this difficulty:
In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of 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 self-definition 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.
While difficult, I think the Court could have done better than this definition. Of particular frustration is the appeal to equally undefined and subjective terms like “faith” and “spirituality”.
The observation that religion is “that which is not secular”, really begs the question, presuming “secular” means “that which is not religious”. Terms like “superhuman” and “controlling power” are also not terribly helpful as they seem to be too expansive. The government of North Korea is a “controlling power”, devotion to which it would not likely assist in a claim of religion. By “superhuman” I assume the learned Justice means “supernatural”. Tigers are superhuman, so are robots.
The Court’s reference to “deeply held personal convictions or beliefs” and elements that are “integrally linked to one’s self-definition” are again unhelpful in distinguishing religion from other aspects of society which are certainly not religion, such as political, cultural, philosophical, racial, gender identity.
Justice Iaccobucci goes on to say that it is not the place of the courts to determine what is part of religion or not:
“In my view, the State is in no position to be, nor should it become, the arbiter of religious dogma.”
I would agree that it is not a good idea for courts to engage in some “no true Scotsman” debate among religious believers. However, they must distinguish between legitimate and frivolous claims for religious freedom. In the end, the test is one of sincerity.
…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… In fact, this Court has indicated on several occasions that, if anything, a person must show “[s]incerity of belief”… and not that a particular belief is “valid”
In terms of how to determine sincerity, the Court sets the bar very low:
… the court’s role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Otherwise, nothing short of a religious inquisition would be required to decipher the innermost beliefs of human beings.
Later, Justice Iaccobucci expounds on how low the bar is to be set when he finds that an inconsistent past practice would not necessarily auger for an insincere claim.
The bar gets ratcheted up a peg or two by the next prong in the test for Religious Freedom. The interference with the religious practice must be significant. The Court states that to properly ground a claim, the limit on the religious practice must interfere “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.”
Finally, the Court incorporates a final consideration that, in my opinion, will defeat most claims of a violation of Freedom of Religion. The right to engage in the religious practice must be balanced against the rights of others:
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.
To sum up, a claim of interference with freedom of religion must assert a non-trivial interference with a practice that does not unreasonably harm or interfere with others’ rights, based on a non-capricious belief that the practice is connected whatever a “religion” may be.
In this case the Court held that the Anselems met the test. Their view of Succot was not orthodox or even necessarily widely held, but it was sincerely believed by them to be a part of religion, even though they had not always undertaken this practice in the past. The Court further held that the brief erection of the shelter was worth the breach of contract and change to the aesthetic appearance of the building.
I think it is basically the right result. This was really important to the Anselems, and I accept that they would be really upset if they could not build their hut. I also don’t have much sympathy for the other residents. The hut would be there for only a few days and I doubt it would be so ugly as to really bother anyone or destroy property values.
Then again, I would not have felt it to be a much of an injustice had the court found it to be a trivial interference given that a) the appellants did not bother to read the fine print when they moved in to ensure they could build their hut, and b) the accommodation offered by the Syndicat seems pretty close to what the Anselems said they required.
At the end of the day, I think what Anselem does is grant to Canadians a very limited right to infringe on the rights of others for religious reasons. While a claimant is faced with a very low threshold of establishing conduct is covered as a religious practice, I think the high threshold of non-interference with the rights of others will defeat most problematic claims.