The Protection of Religious The Protection of Religious Minorities in Canada: Minorities in Canada:

Maintaining our Human Maintaining our Human Rights FrameworksRights Frameworks

January 18, 2011January 18, 2011Professor Professor

ColleenSheppardColleenSheppard

Presentation Outline

1. Equality and Non-discrimination on the basis of Religion: Early Developments

2. Recognition and Protection of Freedom of Religion: Early Developments

3. Recent Developments: The Risk of an Erosion in Protection

1. EQUALITY RIGHTS AND NON-1. EQUALITY RIGHTS AND NON-DISCRIMINATION: KEY DEVELOPMENTSDISCRIMINATION: KEY DEVELOPMENTS

Adverse Effects Discrimination: Adverse Effects Discrimination:

Neutral policies, practices or rules with Neutral policies, practices or rules with unequal effects or burdensunequal effects or burdens

The Duty to Accommodate:The Duty to Accommodate: Reasonable Accommodation to the Point of Reasonable Accommodation to the Point of

Undue HardshipUndue Hardship BackdropBackdrop Substantive Equality : Substantive Equality :

An expansive approach to constitutional An expansive approach to constitutional equalityequality

Adverse Effects Discrimination and Human Adverse Effects Discrimination and Human Rights CodesRights Codes

Ontario Human Rights Commission and O’Malley v. Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536Simpsons-Sears Ltd., [1985] 2 S.C.R. 536Saturday Work rule – Seventh Day Adventist EmployeeSaturday Work rule – Seventh Day Adventist Employee

Adverse Effect discrimination:… a rule or standard which is on its face neutral,

and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground …. in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.

Other Adverse Effect Discrimination Cases

Bhinder v. CN, [1985] 2 S.C.R. 561Bhinder v. CN, [1985] 2 S.C.R. 561

Hard Hat rule – Sikh Employee Hard Hat rule – Sikh Employee

Central Alberta Dairy Pool v. Alberta (Human Central Alberta Dairy Pool v. Alberta (Human Rights Commission),Rights Commission), [1990] 2 S.C.R. 489 – [1990] 2 S.C.R. 489 – Easter Monday work requirement – World Wide Easter Monday work requirement – World Wide Church of GodChurch of God

Commission scolaire régionale de Chambly v. Commission scolaire régionale de Chambly v. BergevinBergevin, [1994] 2 S.C.R. 525, [1994] 2 S.C.R. 525

Work Schedule – Jewish teachers & Yom KippurWork Schedule – Jewish teachers & Yom Kippur

Duty to Accommodate to Point of Duty to Accommodate to Point of Undue HardshipUndue Hardship

To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

British Columbia (Public Service Employee Relations Commission) (Public Service Employee Relations Commission)

v. BCGSEUv. BCGSEU, [1999] 3 S.C.R. 3, [1999] 3 S.C.R. 3 (Meiorin)

Undue Hardship FactorsUndue Hardship Factors

1.1. The limits of financial and material resourcesThe limits of financial and material resourcesCosts , Sources of funding, Nature & Size of operation or institutionCosts , Sources of funding, Nature & Size of operation or institution

2.2. Infringement of RightsInfringement of Rights - Risks for health and safety- Risks for health and safety- Negative impact on others or individual seeking accommodation- Negative impact on others or individual seeking accommodation

3.3. Proper Operation of Business or Institution Proper Operation of Business or Institution Morale of others, interchangeability of workforce and facilities, Size of Morale of others, interchangeability of workforce and facilities, Size of institution, Duration and Scope of accommodation institution, Duration and Scope of accommodation

Adapted from: Christian Brunelle, Discrimination et obligation Adapted from: Christian Brunelle, Discrimination et obligation d’accommodement raisonable en milieu de travail syndiqué (2011) d’accommodement raisonable en milieu de travail syndiqué (2011) 248-251 & Pierre Bosset, Reflections on the Scope and Limits of the 248-251 & Pierre Bosset, Reflections on the Scope and Limits of the Duty of Reasonable Accommodation in the Field of Religion, (CDPDJ, Duty of Reasonable Accommodation in the Field of Religion, (CDPDJ, 2005) 9-10.2005) 9-10.

Substantive Equality Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143

It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality. 

… discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. 

2. FREEDOM OF RELIGION: SOME KEY 2. FREEDOM OF RELIGION: SOME KEY DEVELOPMENTSDEVELOPMENTS

Freedom of Religion (Canadian Freedom of Religion (Canadian Charter, s. 2(a) & Quebec Charter, s. Charter, s. 2(a) & Quebec Charter, s. 3)*3)*

Reasonable Limits (s. 1 & s. 9.1) Reasonable Limits (s. 1 & s. 9.1) Multiculturalism as an interpretive Multiculturalism as an interpretive

value (s. 27)value (s. 27) Gender Equality (s. 28 & s. 50.1)Gender Equality (s. 28 & s. 50.1)

An Expansive Definition : Direct and Indirect An Expansive Definition : Direct and Indirect Interference with ReligionInterference with Religion

Freedom [of religion] can primarily be characterized Freedom [of religion] can primarily be characterized by the absence of coercion or constraint…. Coercion by the absence of coercion or constraint…. Coercion includes not only such blatant forms of compulsion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses control which determine or limit alternative courses of conduct available to others. Freedom in a broad of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and constraint, and the right to manifest beliefs and practices.practices.

R. v. Big M Drug Mart LtdR. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 ., [1985] 1 S.C.R. 295

Burdens must be more than trivial or

insubstantial 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 … R. v. Edwards Books and Art Ltd.,R. v. Edwards Books and Art Ltd., [1986] 2 [1986] 2 S.C.R. 713S.C.R. 713

Legislative Accommodation and Minimal Legislative Accommodation and Minimal ImpairmentImpairment

I do not share the views of the majority of the United States Supreme Court that no legislative effort need be made to accommodate …

In my view, the principles articulated in Oakes make it incumbent on a legislature which enacts Sunday closing laws to attempt very seriously to alleviate the effects of those laws on Saturday observers. The exemption in … the Act under review in these appeals represents a satisfactory effort on the part of the Legislature of Ontario to that end and is, accordingly, permissible. R. v. Edwards Books and Art Ltd.,R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 [1986] 2 S.C.R. 713

Minimal Impairment and the Duty to AccommodateMultani v. Commission scolaire Marguerite-BourgeoysMultani v. Commission scolaire Marguerite-Bourgeoys, ,

[2006] 1 S.C.R. 256[2006] 1 S.C.R. 256

At a conceptual level, the minimal impairment test, which is central to the section 1 analysis, corresponds in large part with the undue hardship defence against the duty of reasonable accommodation in the context of human rights legislation.  J. Woehrling, “L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse” (1998), 43 McGill L.J. 325, at p. 360) cited in Multani

3.3. The Risk of an Erosion in The Risk of an Erosion in Protection? Protection?

Alberta v. Hutterian Brethren of Alberta v. Hutterian Brethren of Wilson ColonyWilson Colony, [2009] 2 S.C.R. 567, [2009] 2 S.C.R. 567

Photo requirement for drivers’ Photo requirement for drivers’ licences challenged by Hutterian licences challenged by Hutterian Brethren of Wilson Colony in Alberta. Brethren of Wilson Colony in Alberta.

From 1974-2003, religious objectors From 1974-2003, religious objectors were granted a non-photo licence at were granted a non-photo licence at the Registrar’s discretion.the Registrar’s discretion.

Hutterite Communities in Alberta

http://www.nfb.ca/film/the_hutterites/

Concern # 1. Religion viewed as individual rather than individual and collective right

Community impact does not, however, transform the essential claim — that of the individual claimants for photo‑free licences — into an assertion of a group right.

McLachlin C.J.

Concern # 2: Indirect burdens undermined

as potential violations of religious freedom

  Evidence of a state‑imposed cost or burden would not suffice; there would need to be evidence that such a burden was “capable of interfering with religious belief or practice”: Edwards Books, at p. 759.  In the present case, however, the courts below seem to have proceeded on the assumption that this requirement was met.  McLachlin C.J.

Concern # 3: Rejection of an effects-based approach to discrimination?

Assuming the respondents could show that the regulation creates a distinction on the enumerated ground of religion, it arises not from any demeaning stereotype but from a neutral and rationally defensible policy choice. There is no discrimination within the meaning of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, as explained in Kapp.  McLachlin C.J.

Concern # 4: Significant deference accorded to legislatures

This Court has recognized that a measure of leeway must be accorded to governments in determining whether limits on rights in public programs that regulate social and commercial interactions are justified under s. 1 of the Charter. … The primary responsibility for making the difficult choices involved in public governance falls on the elected legislature and those it appoints to carry out its policies.  Some of these choices may trench on constitutional rights.  McLachlin C.J.

Concern # 5: An unfair distinction between rights and privileges is relied upon

It is impossible to conclude that Colony members have been deprived of a meaningful choice to follow or not to follow the edicts of their religion.  The law does not compel the taking of a photo.  It merely provides that a person who wishes to obtain a driver’s licence must permit a photo to be taken for the photo identification data bank.  Driving automobiles on highways is not a right, but a privilege. 

McLachlin C.J.

Concern # 6: No individual duty to accommodate when legislative choices are involved

The legislature has no capacity or legal obligation to engage in such an individualized determination, … 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.  … 

McLachlin C.J.

Dissenting Voices (Justices Abella, LeBel & Fish)

Recognition of the Collective Dimensions of Religious Freedom

The harm to the constitutional rights of the Hutterites, in the absence of an exemption, is dramatic.  Their inability to drive affects them not only individually, but also severely compromises the autonomous character of their religious community.

Abella J.

Recognizing the Collective Dimensions of Religious Freedom (cont’d.)

Religion is about religious beliefs, but also about religious relationships. The present appeal signals the importance of this aspect. It raises issues about belief, but also about the maintenance of communities of faith. We are discussing the fate not only of a group of farmers, but of a community that shares a common faith and a way of life that is viewed by its members as a way of living that faith and of passing it on to future generations. LeBel J.

Dissenting Voices:

Recognizing Significant Deleterious Effects

To suggest, as the majority does, that the deleterious effects are minor because the Colony members could simply arrange for third party transportation, fails to appreciate the significance of their self-sufficiency to the autonomous integrity of their religious community.  When significant sacrifices have to be made to practise one’s religion in the face of a state imposed burden, the choice to practise one’s religion is no longer uncoerced. Abella J.

Dissenting Voices – The burdens outweigh the benefits The infringing measure was implemented in order to

reach a hypothetical objective of minimizing identity theft, by requiring driver’s licences with photos. But a small number of people carrying a driver’s licence without a photo will not significantly compromise the safety of the residents of Alberta. On the other hand, under the impugned regulation, a small group of people is being made to carry a heavy burden. The photo requirement was not a proportionate limitation of the religious rights at stake. LeBel J.

… more than 700,000 Albertans do not have a driver’s licence and are therefore not in the province’s facial recognition database. Abella J.

What explains the retreat by the What explains the retreat by the SCC?SCC?

A preference for individual rather than A preference for individual rather than collective rights collective rights

Public/government versus private contextsPublic/government versus private contexts Legislation/regulation versus Legislation/regulation versus

administrative actionadministrative action Public security, crime & public order Public security, crime & public order

concerns concerns Risky precedents: Anticipation of the Risky precedents: Anticipation of the

Polygamy, Niqab/Burqa CasesPolygamy, Niqab/Burqa Cases

ConclusionConclusion

Too early to predict the effects of the Hutterian Brethren case

Risk that it could reduce the human rights protections afforded minority religious communities with respect both to freedom of religion, equality and s. 1.

Concerned reduce equality rights in other areas (especially effects-based violations)