Freedom of Religion: Legal Definition and Its Violation by the Vaccination Mandate—Overlooked by the Union
Source: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2161/index.do
Summary:
Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms) 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. 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. 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.
I. Introduction
1 An important feature of our constitutional democracy is respect for minorities, which includes, of course, religious minorities: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 79-81. Indeed, respect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy. But respect for religious minorities is not a stand-alone absolute right; like other rights, freedom of religion exists in a matrix of other correspondingly important rights that attach to individuals. Respect for minority rights must also coexist alongside societal values that are central to the make-up and functioning of a free and democratic society. This appeal requires the Court to deal with the interrelationship between fundamental rights both at a conceptual level and for a practical outcome.
III. Relevant Legislative Provisions
18 Charter of Human Rights and Freedoms, R.S.Q., c. C-12
1. Every human being has a right to life, and to personal security, inviolability and freedom.
He also possesses juridical personality.
3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.
9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.
Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”)
1039. Upon the publication of the declaration of co‑ownership, the co‑owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co‑ownership and to take all measures of common interest.
The legal person is called a syndicate.
1056. No declaration of co‑ownership may impose any restriction on the rights of the co‑owners except restrictions justified by the destination, characteristics or location of the immovable.
1063. Each co‑owner has the disposal of his fraction; he has free use and enjoyment of his private portion and of the common portions, provided he observes the by‑laws of the immovable and does not impair the rights of the other co‑owners or the destination of the immovable.
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A. Freedom of Religion
37 The analysis that follows sets out the principles that are applicable in cases where an individual alleges that his or her freedom of religion is infringed under the Quebec Charter or under the Canadian Charter of Rights and Freedoms. In my view, the trial judge and the majority of the Court of Appeal took, with respect, an unduly restrictive view of freedom of religion.
(1) Definition of Religious Freedom
38 Section 3 of the Quebec Charter, which applies in both the private and public law context, states:
3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
39 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.
40 What then is the definition and content of an individual’s protected right to religious freedom under the Quebec (or the Canadian) Charter? This Court has long articulated an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom. In Big M, supra, Dickson J. (as he then was) first defined what was meant by freedom of religion under s. 2(a) of the Canadian Charter, at pp. 336-37 and 351:
A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is 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. But the concept means more than that.
. . . Freedom means that . . . no one is to be forced to act in a way contrary to his beliefs or his conscience.
. . .
. . . With the Charter, it has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be. . . . [Emphasis added.]
41 Dickson J. articulated the purpose of freedom of religion in Big M, supra, at p. 346:
Viewed in this context, the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. [Emphasis added.]
Similarly, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 759, Dickson C.J. stated that the
purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices. [Emphasis added.]
42 This understanding is consistent with a personal or subjective conception of freedom of religion, one that is integrally linked with an individual’s self-definition and fulfilment and is a function of personal autonomy and choice, elements which undergird the right; see, generally, J. Woehrling, “L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversité religieuse” (1998), 43 McGill L.J. 325. According to Professor Woehrling, at p. 385:
[translation] Virtually every judicial decision based on s. 2(a) of the Canadian Charter or s. 3 of the Quebec Charter concerns freedom of religion. However, it would appear that these decisions stress the subjective aspect of the believer’s personal sincerity rather than the objective aspect of the conformity of the beliefs in question with established doctrine. [Emphasis added.]
43 The emphasis then is on personal choice of religious beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, 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; see, e.g., Re Funk and Manitoba Labour Board (1976), 66 D.L.R. (3d) 35 (Man. C.A.), at pp. 37-38. In fact, this Court has indicated on several occasions that, if anything, a person must show “[s]incerity of belief” (Edwards Books, supra, at p. 735) and not that a particular belief is “valid”.
44 For example, in R. v. Jones, [1986] 2 S.C.R. 284, La Forest J., writing for the minority (but not on this point), opined, at p. 295:
Assuming the sincerity of his convictions, I would agree that the effect of the School Act does constitute some interference with the appellant’s freedom of religion. For a court is in no position to question the validity of a religious belief, notwithstanding that few share that belief. [Italics added.]
Although La Forest J. did not explicitly state that all that must be shown is a sincerity of belief, it is implicit in his reasons. Indeed, this position was subsequently explicitly adopted by this Court in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 70, where La Forest J. reasoned that “it is not the role of this Court to decide what any particular religion believes”.
45 In the United States, where there is a richness of jurisprudence on this matter, the United States Supreme Court has similarly adopted a subjective, personal and deferential definition of freedom of religion, centred upon sincerity of belief. For example, in Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), the court held that it was the plaintiff’s subjective beliefs, and not the official position of the particular religion, which must be considered in evaluating the free exercise guarantees under the First Amendment of the U.S. Constitution. In delivering the opinion of the U.S. Supreme Court, Chief Justice Burger stated, at pp. 715-16:
. . . the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.
The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. [Emphasis added.]
This view was repeated in Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989), at p. 834, where White J., for a unanimous court, stated:
Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Here, Frazee’s refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection. [Emphasis added.]
46 To summarize up to this point, our Court’s past decisions and the basic principles underlying freedom of religion support the view that freedom of religion 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.
47 But, at the same time, this freedom encompasses objective as well as personal notions of religious belief, “obligation”, precept, “commandment”, custom or ritual. Consequently, both obligatory as well as voluntary expressions of faith should be protected under the Quebec (and the Canadian) Charter. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagu