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FAITH & RELIGION AT THE SUPREME COURT OF CANADA WHERE WE WERE, WHERE WE ARE, WHERE WE’RE GOING KEY CASES, TOPICS AND TRENDS (1959-2013)

By

Eugene Meehan Q.C. Supreme Advocacy LLP Ottawa, Ontario, Canada emeehan@supremeadvocacy.ca Religious Freedom in Education A Pluralism, Religion & Public Policy Symposium McGill University Montreal, Québec October 3rd- 5th, 2013

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T A B L E O F C O N T E N T S

INTRODUCTION & TABLE OF CASES ............................................................................................................................... 4 TABLE OF CASES (CHRONOLOGICAL) ............................................................................................................................. 6 RECENT ISSUES & PENDING DECISIONS ......................................................................................................................... 8

Attorney General of Canada, et al. v. Terri Jean Bedford, et al. ............................................................................... 8 Legality of Prostitution; Criminal Code Offences .................................................................................... 8

Loyola High School, et al. v. Attorney General of Quebec ........................................................................................ 8 Freedom of Religion of a Religious Educational Institution; Admin Law; Judicial Review ...................... 8

Charter of Quebec Values ......................................................................................................................................... 9 Religious Expression; Limits on Conspicuous Religious Symbols ............................................................ 9

Bill 52, An Act Respecting End-of-Life Care (Quebec) ............................................................................................... 9 Euthanasia Legislation; End-of-Life Care; Division of Powers ................................................................. 9

OBSERVANCE OF RELIGIOUS DAYS, EMPLOYMENT & LABOUR ..................................................................................... 9

Caldwell et al. v. Stuart et al., [1984] 2 S.C.R. 603 ................................................................................................... 9 Employment; Religious Conformance as a Bona Fide Occupational Requirement ................................. 9

Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536 ....................................................................... 10 Employment; Observance of Religious Days; Discrimination through Effect on Basis of Creed ........... 10

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295...................................................................................................... 10 Observance of Religious Days; Lord’s Day Act ...................................................................................... 10

R v Edwards Book and Art, [1986] 2 S.C.R. 713 ...................................................................................................... 11 Observance of Religious Days; Religious Holidays ................................................................................ 11

Renaud v. Central Okanagan School District No. 23, [1992] 6 W.W.R. 193 ........................................................... 11 Employment; Observance of Religious Days; Duty to Accommodate .................................................. 11

Robertson v. R., [1963] S.C.R. 651 .......................................................................................................................... 12 Lord’s Day Act; Canadian Bill of Rights; Operating a Business on a Sunday ......................................... 12

MARRIAGE & FAMILY LAW .......................................................................................................................................... 12

Marcovitz v. Bruker, 2007 SCC 54........................................................................................................................... 12 Marriage; Divorce; Contracts; Contractual Agreement to Consent to a Rabbinical “Get” ................... 12

Reference re Same-Sex Marriage, 2004 SCC 79 ..................................................................................................... 13 Definition of Marriage; Same Sex Marriage .......................................................................................... 13

Young v. Young, [1993] 4 S.C.R. 3 ........................................................................................................................... 13 Family Law; Best Interests of the Child; Right of Parent to Subject Child to Religious Beliefs .............. 13

EDUCATION ................................................................................................................................................................. 14

S.L. v. Commission scolaire des Chênes, 2012 SCC 7 .............................................................................................. 14 Education; Exemption from Religious Curriculum ................................................................................ 14

Chamberlain v. Surrey School District No. 36, 2002 SCC 86 ................................................................................... 14 Education; Curriculum Depicting Same-Sex Parented Families ............................................................ 14

Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31 ............................................... 15 Education; Reconciling the Freedom of Religion and Right to Equality ................................................ 15

Alder v Ontario, [1996] 3 S.C.R. 609 ....................................................................................................................... 15 Education; Challenge to Non-Funding of Denominational Private Schools .......................................... 15

Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148 .......................................... 16 Education; Funding of Roman Catholic Secondary Schools .................................................................. 16

The Queen v. Jones, [1986] 2 S.C.R. 284 ................................................................................................................. 16 Education; Right of a Parent to Educate Children ................................................................................. 16

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EXPRESSION CASES ...................................................................................................................................................... 17 Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11 ......................................................................... 17

Hate Speech; Freedom of Religion and Expression ............................................................................... 17 Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 ........................................................................ 18

Freedom of Expression; Right of Teacher to Espouse Discriminatory Statements ............................... 18 Saumur v. Quebec (City), [1953] 2 S.C.R. 299 ......................................................................................................... 18

Expression; Right to Disseminate Religious Literature in the Streets ................................................... 18 BLOOD TRANSFUSION CASES ...................................................................................................................................... 18

Manitoba (Director of Child & Family Services) v. C. (A.), 2009 SCC 30 .................................................................. 18 Blood Transfusions; Right of Minor to Refuse Necessary Medical Treatment ..................................... 18

B.(R) v Children`s Aid Society, [1995] 1 SCR 315 ..................................................................................................... 19 Blood Transfusion; Parental Right to Choose Medical Treatment of Infants (Baby) ............................ 19

ABORTION, EUTHANASIA & THE CRIMINAL CODE ....................................................................................................... 20

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.................................................................. 20 Euthanasia; Assisted Suicide ................................................................................................................. 20

R. v. Morgentaler, [1993] 3 S.C.R. 463 ................................................................................................................... 20 Abortion; Distribution of Powers; Pith and Substance Doctrine ........................................................... 20

R. v. Gruenke, [1991] 3 S.C.R. 263 .......................................................................................................................... 21 Criminal; Admissibility of Communications with Pastor as Privileged .................................................. 21

Tremblay v. Daigle, [1989] 2 S.C.R. 530 ................................................................................................................. 22 Abortion; Rights of a Foetus; Right of Father to Stop Abortion ............................................................ 22

R. v. Morgentaler, [1988] 1 S.C.R. 30 ..................................................................................................................... 22 Abortion; Life, Liberty, & Security of the Person; Freedom of Conscience ........................................... 22

RELIGIOUS DRESS, & OTHER PRACTICES ...................................................................................................................... 23

R. v. S. (N.), 2012 SCC 72 ........................................................................................................................................ 23 Criminal Law; Right to Wear Religious Face Covering in Criminal Proceedings .................................... 23

Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37 ............................................................................... 23 Right to Subject Drivers to Photos for Licencing Purposes Contrary to Religious Convictions ............. 23

Multani v. Marguerite-Bourgeoys (Commission scolaire), 2006 SCC 6 .................................................................. 24 Religious Dress; Freedom to Wear Religious Kirpan While Attending School; Admin Law................... 24

Bhinder v. CN, [1985] 2 S.C.R. 561 .......................................................................................................................... 24 Employment; Bona Fide Occupational Requirement; Religious Dress .................................................. 24

Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332 ................................................................................................ 25 Religious Practices; Prohibition on Hunting Interfering with the Freedom of Religion ........................ 25

PROPERTY, CONTRACTS, & CORPORATIONS LAW ....................................................................................................... 25

Syndicat Northcrest v. Amselem, 2004 SCC 47 ....................................................................................................... 25 Property; Contracts; Construction of Succahs on Balconies ................................................................. 25

Congrégation des témoins de Jéhovah St‑Jérôme‑Lafontaine v. Lafontaine, 2004 SCC 48 .................................. 25 Property; Municipal Denial to Amend Zoning By-Law; Construction of a Place of Worship ................ 25

Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 ..................................................................... 26 Excommunication and Expulsion of Members; Corporations ............................................................... 26

Hofer v. Hofer, [1970] S.C.R. 958 ............................................................................................................................ 26 Property (communal); Hutterian Brethren; Expulsion of Members ..................................................... 26

Walter v. Alberta (Attorney General), [1969] S.C.R. 383 ........................................................................................ 27 Property; Land Acquisition Prohibited; The Communal Property Act, R.S.A. 1955, c. 52 ..................... 27

DISCRETIONARY POWER OF ELECTED OFFICIALS ........................................................................................................ 27

Roncarelli v. Duplessis, [1959] S.C.R. 121 ............................................................................................................... 27 Valid Exercise of Discretionary Power; Denial of Liquor Licence in “Bad Faith” ................................... 27

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INTRODUCTION & TABLE OF CASES

This is, very deliberately, a non-academic ‘non-paper’ – that way you can access the law here in a

very fast way. The Supreme Court of Canada has produced a strong line of cases developing the law

surrounding issues concerning religious freedom. This non-paper attempts to show the progression

of the law by topic since the introduction of the Charter of Rights and Freedoms (although some

pre-Charter cases are also included).

Below is a list of key trending topic areas at the Supreme Court of Canada which are chronologically

arranged throughout the paper by section:

observance of religious days, employment and labour;

marriage and family law;

education;

expression;

blood transfusions;

abortion, euthanasia and the Criminal Code;

religious dress and other practices; and

property, contracts, and corporations.

Aside from these specific topic areas, the Supreme Court of Canada has also experienced broader

trends since the inception of the Charter. Most obvious was an early movement away from laws

which explicitly imposed Judeo-Christian values on all persons within a Canadian jurisdiction. The

case of R. v. Big M Drug Mart Ltd. is perhaps the best example when the Lord’s Day Act, prohibiting

the sale of goods on Sundays for religious purposes, was struck down as a violation of s.2(a) of the

Charter.

Other trends have included a shift towards secularization which has indirectly challenged values

strongly espoused by different faith groups including Judeo-Christian sects. Cases including

Rodriguez (euthanasia), Morgentaler (abortion), and more recently the case of Terri Jean Bedford et

al. (prostitution) are all examples of cases that challenge Criminal Code provisions prohibiting acts

widely considered by many faith groups to be immoral. Unlike Big M Drug Mart Ltd., these cases

are not strictly speaking about the s.2(a) freedom of religion but nonetheless involve lively debate

and discussion concerning the legalization of behaviour inherently offensive to the core values of

many Judeo-Christian faith groups in Canada.

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The Supreme Court has also seen a progression of cases involving other religious traditions. This is

no surprise considering that cultural and religious diversity in Canada has continued to increase as

its population has grown. For example, cases such as Bhinder v. CN, Multani, and R. v. S.(N.) each

concerned either Sikh or Muslim religious practices related to religious dress in the context of work,

school, and courtroom environments. Recently, religious dress has been targeted by the Charter of

Quebec Values, a proposed Bill by the Québec Government, which would prohibit public servants

from wearing conspicuous religious symbols while working. Examples of banned symbols (dress)

would potentially include the burqa, kirpan, hijab, and turban. If the Charter of Quebec Values

passes as law it will almost certainly be challenged at the Supreme Court level either by an

individual claiming an infringement of their Charter rights and freedoms or through a reference filed

by the Governor in Council under s.53 of the Supreme Court Act.

No matter the topic or trend, the heart of each case intersecting with religious values or freedom is

a result of the inevitable dissonance that arises when positive law and divine law oppose each

other. These faith convictions are sometimes irreconcilable and result in challenges to Canadian

laws alleged to infringe religious freedom. Iacobucci J. identified this tension in the case of Syndicat

Northcrest v. Amselem when he explained that for an infringement of the freedom of religion to

exist, an individual must have a sincerely held belief (irrespective of established dogmas) that is

interfered with in a manner that is more than trivial or insubstantial. Once that is established, the

court must then find a compromised balance that is consistent with the interest, order, and general

well-being of the public (at paras. 56-59).

With this framework in mind, it is difficult to predict with precision what issues will make their way

up to the Supreme Court of Canada. Two cases however, will be decided in the near future by the

Supreme Court: Terri Jean Bedford et al. (appeal heard June 13, 2013), and Loyola High School

(appeal to be heard March 24, 2014). The Terri Jean Bedford et al. case is a challenge to the

constitutional validity of sections of the Criminal Code prohibiting prostitution, and Loyola concerns

whether or not an institution (a school) can enjoy the freedom of religion included in s.2(a) of the

Canadian Charter and s.3 of the Quebec Charter of Human Rights and Freedoms.

Certainly Canada will continue to remain a diverse and multicultural society with inhabitants

representing a multitude of religious belief-systems. As long as those belief-systems continue to

overlap with Canadian laws (they inevitably will), the Supreme Court of Canada will be called on to

reconcile any conflicts.

For future updates on what’s happening at Canada’s highest court, you can sign up for our

newsletter at supremeadvocacy.ca or follow us on Twitter @supremeadvocacy.

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TABLE OF CASES (CHRONOLOGICAL)

Topic Sub-Topics Belief Systems Involved

Roncarelli v. Duplessis, [1959] S.C.R. 121

Public Law Use of Discretionary Power of a Public Official

Judeo-Christian

Jehovah's Witness

Saumur v. Quebec (City), [1953] 2 S.C.R. 299

Municipal Law; Expression

Validity of By-Law Limiting the Dissemination of Religious Literature

Judeo-Christian

Jehovah's Witness

Robertson v. R., [1963] S.C.R. 651 Observance of Religious Day

Lord's Day Act Judeo-

Christian Christianity

Walter v. Alberta (Attorney General), [1969] S.C.R. 383

Property Limiting Acquisition of Land; Communal Property Act

Judeo-Christian

Hutterian Brethren

Hofer v. Hofer, [1970] S.C.R. 958 Associations; Corporations

Communal Property of Religious Colony Judeo-

Christian Hutterian Brethren

Caldwell et al. v. Stuart et al., [1984] 2 S.C.R. 603

Employment & Labour

Bona Fide Occupational Requirement Judeo-

Christian Catholicism

Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536

Employment & Labour

Duty of Employer to Accommodate Practice

Judeo-Christian

Seventh-day Adventist

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

Observance of Religious Day

Lord's Day Act Judeo-

Christian -

Bhinder v. CN, [1985] 2 S.C.R. 561 Religious Dress; Employment &

Labour Bona Fide Occupational Requirement Sikh -

Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332

Religious Practice

Right to Hunt as Religious Practice Aboriginal Coast Salish

Indians

R. v. Edwards Book and Art, [1986] 2 S.C.R. 713

Observance of Day of Rest

Retail Business Holidays Act - -

The Queen v. Jones, [1986] 2 S.C.R. 284

Education Parental Right to Educate Children Judeo-

Christian Christian

Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148

Education Funding of Roman Catholic School; Division of Powers

- -

R. v. Morgentaler, [1988] 1 S.C.R. 30 Abortion Criminal Code of Canada Provisions - -

Tremblay v. Daigle, [1989] 2 S.C.R. 530

Abortion Foetus Rights and Right of a Father to Stop Abortion

- -

R. v. Gruenke, [1991] 3 S.C.R. 263 Criminal Law Admissibility of Communications with Pastor as Privileged

Judeo-Christian

Christianity

Renaud v. Central Okanagan School District No. 23, [1992] 6 W.W.R. 193

Employment & Labour

Duty of Employer to Accommodate Practice

Judeo-Christian

Seventh Day Adventist

Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165

Association; Corporation

interpretation of Articles of Association Judeo-

Christian Hutterian Brethren

Young v. Young, [1993] 4 S.C.R. 3 Family Law Best Interests of the Child, Right of Parent to Subject Child to Religious Beliefs

Judeo-Christian

Jehovah's Witness

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

Euthanasia Criminal Code of Canada Provisions - -

R. v. Morgentaler, [1993] 3 S.C.R. 463 Abortion Division of Powers - -

B.(R) v. Children`s Aid Society, [1995] 1 S.C.R. 315

Blood Transfusion

Right of Parent to Refuse Minor Necessary Medical Treatment

Judeo-Christian

Jehovah's Witness

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TABLE OF CASES (CHRONOLOGICAL)

Topic Sub-Topics Belief Systems Involved

Alder v. Ontario, [1996] 3 S.C.R. 609 Education Non-Funding of Private Religious Schools Judeo-

Christian Judaism and Christianity

Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825

Expression Religious Expression and Discriminatory Statements of Teacher

Judeo-Christian

Christianity

Trinity Western University v. College of Teachers, 2001 SCC 31

Education Reconciling Freedom of Religion and Equality

- -

Chamberlain v. Surrey School District No. 36, 2002 SCC 86

Education School Curriculum (Same-Sex Couples) - -

Reference re Same-Sex Marriage, 2004 SCC 79

Marriage Definition of Marriage - -

Syndicat Northcrest v. Amselem, 2004 SCC 47

Property & Contracts

Construction of Succhas on Balconies Judeo-

Christian Judaism

Congrégation des témoins de Jéhovah St-Jérôme-Lafontaine v. Lafontaine, 2004 SCC 48

Municipal Law Validity of By-Law Limiting Land Use Judeo-

Christian Jehovah's Witness

Multani v. Marguerite-Bourgeoys (Commission scolaire), 2006 SCC 6

Religious Dress Freedom of Student to Wear Kirpan at School

Sikh -

Marcovitz v. Bruker, 2007 SCC 54 Contracts; Marriage

Marriage; Refusal of Rabbinical Get Judeo-

Christian Judaism

Manitoba (Director of Child & Family Services) v. C. (A.), 2009 SCC 30

Blood Transfusion

Right of Minor to Refuse Necessary Medical Treatment

Judeo-Christian

Jehovah's Witness

Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37

Religious Custom Validity of Government Policy Mandating Photos in Driver's Licence

Judeo-Christian

Hutterian Brethren

S.L. v. Commission scolaire des Chênes, 2012 SCC 7

Education School Curriculum (Religious) Judeo-

Christian Catholicism

R. v. S. (N.), 2012 SCC 72 Criminal Law;

Religious Dress Religious Dress, Wearing Face Covering During Witness Testimony

Islam Muslim

Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11

Expression Religious Expression and Hate Speech Judeo-

Christian Christian

Truth Activists

Attorney General of Canada, et al. v. Terri Jean Bedford, et al.

Criminal Code Legality of Prostitution -

Loyola High School, et al. v. Attorney General of Quebec

Education Institutional Freedom of Religion Judeo-

Christian Catholicism

Charter of Quebec Values (proposed) Religious Dress Equality & Expression -

Bill 52, An Act Respecting End-of-Life Care

Euthanasia Division of Powers -

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RECENT ISSUES & PENDING DECISIONS

Attorney General of Canada, et al. v. Terri Jean Bedford, et al.

Legality of Prostitution; Criminal Code Offences

Basic Facts – The Respondents, sex trade workers, challenged the constitutional validity of s.210 (keeping common bawdy houses) as it relates to prostitution, s. 212(1)(j) (living off the avails of prostitution), and s. 213(1)(c) (communicating for the purpose of prostitution) of the Criminal Code. The Ontario Court of Appeal held that all the sections infringed the respondents’ security of the person. It held that s. 213(1)(c) does not violate principles of fundamental justice and should remain in force and effect. It held that s. 210 should be struck and the limiting words “in circumstances of exploitation” should be read into s. 212(1)(j).” The Court of Appeal allowed the appeal in part. It held it was not open to the trial judge to review whether s. 213(1)(c) breached s. 2(b) of the Charter since that issue was decided in Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123. Main Issues – Do sections 210, 212(1)(j), and 213(1)(c) of the Criminal Code of Canada infringe s.7 and 2(b) of the Charter? If yes, is any infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s.1 of the Charter? Appeal was heard June 13, 2013 – Decision Pending

Hyperlink to case: Canada (Attorney General) v. Bedford, 2012 ONCA 186

Loyola High School, et al. v. Attorney General of Quebec

Freedom of Religion of a Religious Educational Institution ; Admin Law; Judicial Review

Basic Facts – In 2008, the ethics and religious culture (ERC) program became mandatory in schools in Quebec replacing Protestant and Catholic programs of religious and moral instruction. Loyola High School, a religious educational institution, requested an exemption from the ERC program in order to continue offering its own program in accordance with s.22 of the Regulation respecting the application of the Act respecting private education, R.R.Q., c. E-9.1, r. 1. An exemption is available where the institution dispenses programs of studies which the Minister of Education, Recreation and Sports (“Minister”) judges equivalent. The Minister denied the exemption stating that the Applicant’s program was not equivalent to the ERC program on grounds that it is faith-based as opposed to cultural in its approach. The Applicant brought a motion for judicial review seeking to quash the Minister’s decision and requested an exemption from the ERC program as well as the right to teach its own program. Loyola deals with the same subject matter (different context) of the SCC case of S.L. v. Commission scolaire des Chênes, 2012 SCC 7 where the court held the ERC course did not violate student rights to freedom of religion. Main Issues – Did the Quebec Court of Appeal err in failing to decide that the Applicant, as a religious educational institution, enjoys the fundamental right of freedom of religion entrenched in s. 2(a) of the Canadian Charter of Rights and Freedoms and s. 3 of the Quebec Charter of Human Rights and Freedoms? Did the Quebec Court of Appeal err in holding that, on the substantive issue of freedom of religion, the Applicant’s freedom of religion had not been violated by the Minister’s decision? Appeal Date (tentative) – To be heard March 24, 2014 Hyperlink to case: Québec (Procureur general) c. Loyola High School, 2012 QCCA 2139

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Charter of Quebec Values

Religious Expression; Limits on Conspicuous Religious Symbols Basic Facts - The government of Quebec has announced plans to introduce the Charter of Quebec Values, a bill which would prohibit government service workers and employees from wearing conspicuous religious symbols. This issues has recently been a source of significant media attention as the proposed law appears to conflict with fundamental human rights (i.e. religion and expression) which are protected internationally by the Universal Declaration of Human Rights; and domestically in the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. If the bill is introduced and passed, its constitutional validity will almost certainly be challenged by way of a reference by the Governor in Council under s.53 of the Supreme Court Act, RSC 1985, c S-26, and s.46 of the Rules of the Supreme Court of Canada, SOR/2002-156. Main Issues – Would the proposed Charter of Quebec Values, prohibiting the wearing of conspicuous religious symbols violate s.2(a) freedom of religion, and s.2(b) expression within the Charter of Rights and Freedoms?

Bill 52, An Act Respecting End-of-Life Care (Quebec)

Euthanasia Legislation; End-of-Life Care; Division of Powers Basic Facts - On June 12, 2013 Quebec Social Services Minister Véronique Hivon's introduced Bill 52: An Act Respecting End-of-Life Care. Section 1 of the proposed Act explains that:

The purpose of this Act is to ensure that end-of-life patients are provided care that is respectful of their dignity and their autonomy. The Act establishes the rights of such patients as well as the organization of and a framework for end-of-life care so that everyone may have access, throughout the continuum of care, to quality care that is appropriate to their needs, including prevention and relief of suffering. In addition, the Act recognizes the primacy of freely and clearly expressed wishes with respect to care, in particular by establishing an advance medical directives regime. Bill 52, An Act Respecting End-of-Life Care, 1

st Sess, 40

th Leg, Quebec (1

st Reading, June 12, 2013).

Main Issues - If passed the Act would allow qualifying individuals to refuse or withdraw consent to life sustaining care, treatment or procedures. It would amend provisions of the Civil Code of Quebec; the Code of Civil Procedure; the Medical Act; and an An Act respecting health services and social services for Cree Native persons. Bill 52 raises jurisdictional concerns under the Constitution Act, 1867 as it touches on topics that overlap among both federal and provincial governments (matters of health and criminal law).

Hyperlink to Bill: Bill 52, An Act Respecting End of Life Care

OBSERVANCE OF RELIGIOUS DAYS, EMPLOYMENT & LABOUR

Caldwell et al. v. Stuart et al ., [1984] 2 S.C.R. 603

Employment; Religious Conformance as a Bona Fide Occupational Requirement

Basic Facts - Appellant, a Roman Catholic teacher in a Roman Catholic school, was not rehired for the following school year as she had married a divorced man in a civil ceremony contrary to church dogma. She alleged the dismissal was without reasonable cause and discriminated against her on the basis of marital status and religion. Main Issues - Whether it is contrary to the Human Rights Code, R.S.B.C. 1979, c. 186 for a denominational school (in this case Roman Catholic) to refuse to continue employment to a Catholic teacher who has disregarded the rules of the Church by marrying a divorced person in a ceremony outside the Church?

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Main Holdings - Although s. 8(2) of the Human Rights Code provided that religion and marital status were not considered reasonable causes for dismissal, in this case it was permitted because it was contravened the employer’s bona fide occupational requirement that the teacher adhere to the religious and doctrinal aspect at the very heart of the school’s mission. The role of the teacher in this respect was fundamental to the whole effort of the school and it was therefore open to the board to find that when the appellant contravened the Church's requirements she deprived herself of a bona fide qualification for the employment. Hyperlink to case: Caldwell et al. v. Stuart et al., [1984] 2 S.C.R. 603

Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536

Employment; Observance of Rel igious Days; Discrimination through Effect on Basis of Creed

Basic Facts - Appellant alleged she was religiously discriminated against by her employer because she was sometimes required to work Fridays and Saturdays as a condition of her employment. She claimed this conflicted with her religious convictions as a Seventh Day Adventist to observe the Sabbath from sundown Friday to sundown Saturday. Divisional Court and the Court of Appeal upheld a Board of Inquiry's decision to dismiss the complaint. Main Issues - Whether or not a work requirement imposed on all employees for business reasons discriminated against Appellant because compliance required her to act contrary to her religious beliefs. Main Holdings - Appeal allowed. An employment rule made honestly and in good faith for sound economic and business reasons may nevertheless be discriminatory if it affects an individual differently from others to whom it is intended to apply. Intent is not required. Instead, the effects of the discriminatory action are determinative. In the case of adverse effect discrimination, the employer has a duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer’s business. If such reasonable steps do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part, must sacrifice either his religious principles or his employment. The complainant must first establish a prima facie case of discrimination. The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship. Here, the employer did not discharge the onus of showing that it had taken reasonable steps to accommodate the complainant. Hyperlink to case: Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536

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

Observance of Religious Days; Lord’s Day Act

Basic Facts - The Respondent, Big M Drug Mart, was charged with carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. The Respondent was acquitted. Appeal was dismissed at the Court of Appeal. Main Issues - Did the Lord’s Day Act violate s.2(a) freedom of conscience and religion of the Charter? Was the violation justified under s.1 of the Charter? Main Holdings - Appeal dismissed. The Lord’s Day Act held to be in violation of s.2(a) of the Charter in its purpose. As per s.52 of the Constitution Act, 1982, any law inconsistent with the provisions of the Constitution is, “to the extent of the inconsistency, of no force or effect.” The initial test of constitutionality is whether or not the purpose of the law is valid. The effects of the legislation need only be considered when the law under review passes the purpose test. The effects test can never be relied on to save legislation that has an invalid purpose. Since the acknowledged purpose of the Lord’s Day Act was the compulsion of religious observance the Act offended the freedom of religion. The S.C.C. concluded it was unnecessary to consider the actual impact of Sunday closing upon

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religious freedom. Legislation whose purpose is found to violate the Charter cannot be saved even if its effects were found to be inoffensive. The Lord’s Day Act “to the extent that it binds all to a sectarian Christian ideal, works a form of coercion inimical to

the spirit of the Charter. The Act gives the appearance of discrimination against non-Christian Canadians. Religious

values rooted in Christian morality are translated into a positive law binding on believers and non‑believers alike.

Non‑Christians are prohibited for religious reasons from carrying out otherwise lawful, moral and normal

activities. Any law, purely religious in purpose, which denies non‑Christians the right to work on Sunday denies them the right to practise their religion and infringes their religious freedom. The protection of one religion and

the concomitant non‑protection of others imports a disparate impact destructive of the religious freedom of society. The power to compel, on religious grounds, the universal observance of the day of rest preferred by one

religion is not consistent with the preservation and enhancement of the multi‑cultural heritage of Canadians recognized in s. 27 of the Charter. The Appellant did not establish that the Lord’s Day Act constituted a reasonable limit, demonstrably justifiable in a free and democratic society and therefore it cannot be saved pursuant to s. 1 of the Charter. The Lord’s Day Act is enacted pursuant to the criminal law power under s. 91(27) of the Constitution Act, 1867. It compels the observance of a religious duty by means of prohibitions and penalties, and is therefore directed towards the maintenance of public order and the safeguarding of public morality.” Hyperlink to case: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295

R v Edwards Book and Art , [1986] 2 S.C.R. 713

Observance of Religious Days; Religious Holidays Basic Facts - Three Ontario businesses challenged the constitutionality of convictions obtained for failing to ensure that retail goods were not sold or offered for sale on a Sunday which was contrary to the Ontario Retail Business Holidays Act. The Ontario Court of Appeal struck down the provision under the Act because it did not provide for adequate religious exemptions which were demonstrably justified under section 1 of the Charter. Main Issues - Did the Retail Business Holidays Act violate s.2(a), 7, and 15 of the Charter? If yes, were the violations justified under s.1? Was the Act within the provincial jurisdiction to legislate under s.92 of the Constitution Act? Main Holdings - The Act was upheld. The Retail Business Holidays Act infringed s.2(a) its effects (not its secular purpose), but was justifiable as a reasonable limit under s.1 of the Charter. Hyperlink to case: R v Edwards Book and Art, [1986] 2 S.C.R. 713

Renaud v. Central Okanagan School District No. 23 , [1992] 6 W.W.R. 193

Employment; Observance of Religious Days; Duty to Accommodate

Basic Facts – An employee of a school board was a member of the union. His work schedule involved an afternoon shift from 3 to 11 p.m. on Fridays. His religion forbade him to work from sundown Friday until sundown Saturday. He asked the school to accommodate his inability to work the full Friday shift. After unsuccessful attempts by the board to accommodate the employee the board terminated his employment. The employee filed a complaint against the school and the union pursuant to the British Columbia Human Rights Act. Main Issues – What is the duty of an employer to accommodate the religious beliefs of an employee? To what extent is that duty shared by a trade union. Main Holdings - Appeal allowed. There is a duty to accommodate notwithstanding the presence of a bona fide occupational requirement in cases of adverse effect discrimination. The duty of an employer to accommodate the religious beliefs and practices of employees requires the employer to take reasonable measures (short of undue

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hardship) and more than negligible effort is required. Minor inconvenience is a consequence of protecting religious freedom in a multicultural society. Along with the employer and the union the court ruled there is also a duty on the affected employee to assist in securing appropriate accommodation. Once an employer has initiated a reasonable proposal that would fulfill the duty to accommodate, the employee has a duty to facilitate its implementation (otherwise the complaint can be dismissed). In this case the employee fully discharged this duty. “A collective agreement is subject to the Human Rights Act. The Act prohibits adverse effect discrimination no less than direct discrimination. In both instances private arrangements, whether by contract or collective agreement, must give way to the requirements of the statute. In the case of unjustified direct discrimination, the whole provision is invalid because its purpose as well as effect is to discriminate on a prohibited ground. A collective agreement provision which is neutral on its face but operates in a discriminatory fashion against the employee is valid in its general application. However, the Act requires that an employee be accommodated by exempting that employee from its provisions to the extent that it no longer discriminates against him or her on the basis of religion.” Hyperlink to case: Renaud v. Central Okanagan School District No. 23, [1992] 6 W.W.R. 193

Robertson v. R. , [1963] S.C.R. 651

Lord’s Day Act ; Canadian Bil l of Rights ; Operating a Business on a Sunday

Basic Facts – Appellants were charged and convicted of unlawfully operating a bowling alley contrary to the Lord's Day Act, R.S.C. 1952, c. 171. Main Issues – Did the Lord’s Day Act conflict with provisions protecting religious freedom contained in the Canadian Bill of Rights? Main Holdings – Appeal dismissed. Legislation upholding the sanctity of Sunday was not considered an interference with the freedom of religion guaranteed by the Bill of Rights. Nothing in the Lord’s Day Act infringed on the liberty of religious thought and practice of any citizen. The practical result was a purely secular and financial as it required them from conducting business and did not limit their religious freedom.

Hyperlink to case: Robertson v. R., [1963] S.C.R. 651

MARRIAGE & FAMILY LAW

Marcovitz v. Bruker, 2007 SCC 54

Marriage; Divorce; Contracts; Contractual Agreement to Consent to a Rabbinical “Get”

Basic Facts – A couple divorced. They voluntarily entered into and signed a consent to corollary relief for the purposes of settling their matrimonial disputes. One included issue agreed upon was that they would attend before a rabbinical court to obtain a “get” (a Jewish divorce). The husband then, for 15 years, refused to obtain the get, arguing it was not a freely made and valid contractual agreement. The husband also argued his right to freedom of religion shielded him from complying with this commitment. The wife began legal proceedings and sought damages against her husband. The Court of Appeal held that the substance of the former husband's obligation was religious in nature and, accordingly, that an alleged breach of the obligation was not enforceable by the secular courts to obtain damages or specific performance. The wife appealed. Main Issues – Was the agreement valid between the parties regarding consent to give a valid and binding contractual obligation under Quebec Law? Main Holdings – The Appeal was allowed. Damages were available for breach of contract in this context. The fact that consent had religious elements did not immunize it from judicial scrutiny. The case was not about dealing with judicial review of doctrinal religious principles, nor was the Court required to speculate on what the rabbinical

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court would decide. The promise by the husband to remove the religious barriers to remarriage by providing a get was negotiated between two adults with valid consent. Each party was represented by counsel and entered into a voluntary exchange of commitments intended to have enforceable legal consequences. There are only two limitations on the object of a contract: it cannot be prohibited by law or be contrary to public order. The husband's agreement to provide a get was consistent with public order. Moreover, the enforceability of a promise by a husband to provide a get harmonized with Canada's approach to religious freedom, to equality rights, to divorce and remarriage generally, and had been judicially recognized internationally. Accordingly, the contractual obligation contained in the agreement was valid and legally binding under Quebec law (at para. 64). Hyperlink to case: Marcovitz v. Bruker, 2007 SCC 54

Reference re Same-Sex Marriage, 2004 SCC 79

Definition of Marriage; Same Sex Marriage

Basic Facts – The Governor in Council referred questions to the Supreme Court pursuant to s.53 of the Supreme Court Act regarding the constitutional validity of same-sex marriage (proposed legislation). The proposed Act defined marriage for civil purposes as “the lawful union of two persons to the exclusion of all others.” The Act also included a provision which permitted religious officials to refuse to perform marriages that were not in alignment with their religious convictions and beliefs. Main Issues – Was the proposed Act including a new definition of marriage constitutionally valid? Did s.2(a) of the Charter protect religious officials from being compelled to perform same-sex marriages against their beliefs? Main Holdings – In pitch and substance the proposed legislation pertains to the legal capacity of civil marriage and validly falls within s.91(26) of the Constitution Act, 1867 as a matter of federal jurisdiction. The Constitution is a living tree, and read expansively the word “marriage” in s.91(26) does not exclude same-sex marriage. The proposed legislation was consistent with the Charter, and embodied the government’s policy stance in relation to s.15(1) equality concerns of same-sex couples. The recognition of equality rights of one group cannot, in itself, constitute a violation of the s.15(1) Charter rights of another. Absent unique circumstances with respect to which the Court would not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by law to perform civil or religious same-sex marriages contrary to their beliefs. Hyperlink to case: Reference re Same-Sex Marriage, 2004 SCC 79

Young v. Young, [1993] 4 S.C.R. 3

Family Law; Best Interests of the Child; Right of Parent to Subject Child to Religious Belie fs

Basic Facts – The mother was awarded custody of the couple's three daughters and the father was granted access subject to court imposed restrictions. The father was ordered not to discuss the Jehovah's Witness religion with the children, take them to any religious services or expose them to religious discussions with third parties without mother’s consent. Main Issues – Were sections of the Divorce Act directing judiciary to make decisions regarding custody and access in the “best interests of the child” in violation of the father’s s. 2(a)-(b),(d) and s.15 Charter rights? Main Holdings – Appeal allowed in part. Access restrictions imposed ordered to be removed. The best interests of the child standard provided for in the Divorce Act, R.S.C., 1985, c. 3 did not violate s. 2(a)-(b), (d) and s. 15 of the Charter. Section 16(10) of the Divorce Act regarding the "best interests of the child" did not violate the Charter right to religious and expressive freedoms. The guarantee of freedom of religion does not extend to religious activity which harms or interferes with the parallel rights of other people. Conduct which is not in the best interest

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of the child amounts to an "injury" or intrusion on the rights of others, even in cases where a risk of harm has not been established. The expression challenged in this case did not fall within the recognized limitations on the freedom of expression, e.g., where violence or threatened violence is involved. A prima facie case for protection under the guarantee of freedom of expression was consequently made out. “A custodial parent may require the child to observe a faith until the age of discretion. But there is no "right" to limit the access parent's ability to share his or her religious views with the child, unless that is shown not to be in the child's best interests…The risk of harm need not be established in every case to justify limitations on access.” Hyperlink to case: Young v. Young, [1993] 4 S.C.R. 3

EDUCATION

S.L. v. Commission scolaire des Chênes , 2012 SCC 7

Education; Exemption from Religious Curriculum

Basic Facts – In 2008, the Ethics and Religious Culture (“ERC”) Program became mandatory in Quebec schools, replacing Catholic and Protestant programs of religious and moral instruction. L. and J. requested that the school board exempt their children from the ERC course fearing it would cause serious harm to the children. The director of educational resources for young students denied the exemptions. Main Issues – Did the denial infringe the Appellant’s s.2(a) Charter rights? Main Holdings – Appeal dismissed. Appellants failed to prove any violation of s.2(a) of the Charter. Appellants failed to demonstrate that the ERC interfered with their ability to instruct their children in regards to the Catholic faith. Although the Appellants held a sincere and genuine belief that they were morally obligated to instruct their children they did not establish objective proof of an interference with that practice. It is not enough for a person to say that his or her rights have been infringed; the person must prove the infringement on a balance of probabilities. Hyperlink to case: S.L. v. Commission scolaire des Chênes, 2012 SCC 7

Chamberlain v. Surrey School District No. 36, 2002 SCC 86

Education; Curriculum Depicting Same -Sex Parented Families

Basic Facts – “A kindergarten teacher asked the district school board to approve three books for use as learning resources. The three books depicted same-sex parented families. The board resolved not to approve the use of the books for kindergarten and Grade 1. The chambers judge found that parental concern over the portrayal of same-sex parented families had been the overarching consideration in the board's decision not to approve the books. She concluded that the board had based its decision on concerns that the books would conflict with some parents' views on same-sex relationships. The appeal to the British Columbia Court of Appeal was allowed in part. The parties appealed.” Main Issues – Was the decision of the Board to deny the approval of the books depicting same-sex parented families proper in accordance with its jurisdiction under the School Act? Main Holdings – The Appeal was allowed. “The School Board’s decision was unreasonable in the context of the educational scheme laid down by the legislature. The question of whether the books should be approved as supplementary learning resources is remanded to the Board, to be considered according to the criteria laid out in

the curriculum guidelines and the broad principles of tolerance and non‑sectarianism underlying the School Act.” “The Act’s requirement of secularism in s. 76 does not preclude decisions motivated in whole or in part by religious

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considerations, provided they are otherwise within the Board’s powers. But the Board must act in a way that promotes respect and tolerance for all the diverse groups that it represents and serves.” Hyperlink to case: Chamberlain v. Surrey School District No. 36, 2002 SCC 86

Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31

Education; Reconcil ing the Freedom of Religion and Right to Equality

Basic Facts – Trinity Western University (TWU) established a teacher training program offering baccalaureate degrees in education. TWU applied to the B.C. College of Teachers (BCCT) for permission to assume full responsibility for the teacher education program. The BCCT denied the application because it was contrary to the public interest for the BCCT to approve a teacher education program offered by a private institution which appears to follow discriminatory practices. The practice at issue forced students, faculty, and staff sign a policy which condemned, among other sins, “homosexual behavior”. The trial judge granted an order of mandamus directing the BCCT to grant accreditation to TWU. Main Issues – Did the BCCT have jurisdiction to consider discriminatory practices in its approval process? Was the decision of the BCCT to deny TWU its application justified? Was the decision of the trial judge to order accreditation to TWU justified? Main Holdings – The appeal was dismissed. The court held that it was within BCCT’s jurisdiction to assess TWU practices when considering its application in accordance with provisions of the Teaching Profession Act. The BCCT did not however, have expertise to deal with issues of human rights. The Human Rights Code provided that religious institutions were not considered to have breached the Code by preferring adherents of their religious constituency. “The freedom to hold beliefs is broader than the freedom to act upon them, and tolerance must be shown to the off-duty conduct of teachers as long as discriminatory conduct does not occur on duty.” “The college acted unfairly in considering the religious precepts of the university instead of the impact of those religious beliefs on the learning environment in the public schools. The college properly considered equality concerns pursuant to its public interest jurisdiction, but the right to freedom of religion must be reconciled with the guarantee against discrimination based on sexual orientation contained in the Charter. The trial judge acted judicially in granting the order of mandamus and in directing the college to grant accreditation to the university.” BCCT inferred without sufficient evidence that TWU’s views would limit consideration of social issues by TWU graduates and have a detrimental effect on the learning environment in public schools. Hyperlink to case: Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31

Alder v Ontario , [1996] 3 S.C.R. 609

Education; Challenge to Non-Funding of Denominational Private Schools

Basic Facts – “Parents of children attending private religious schools brought applications seeking declarations that the non-funding of Jewish day schools and the non-funding of independent Christian schools was unconstitutional, and that they were entitled to benefit from educational funding by the province, as were parents of children in public and Roman Catholic separate schools.” Main Issues – Did the provisions in the Education Act infringe the Appellant’s s.2(a) and s.15 Charter rights by not providing funding to Jewish and Christian schools? Main Holdings - The Appeal was dismissed. “The effect of s. 93 of the Constitution Act, 1867 was to prevent the law from prejudicially affecting rights or privileges regarding denominational schools existing at the time of Confederation. Section 93 entrenched constitutionally a special status for certain classes of people.” “As s. 93 was a comprehensive code for denominational school rights, s. 2(a) could not be used to enlarge it. The s. 15 equality

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claim failed, as the funding of public and Roman Catholic schools was within the contemplation of s. 93, and thus immune from Charter scrutiny.” Hyperlink to case: Alder v Ontario, [1996] 3 S.C.R. 609

Reference re Bill 30, An Act to Amend the Education Act (Ont.) , [1987] 1 S.C.R. 1148

Education; Funding of Roman Catholic Secondary Schools

Basic Facts – “This was an Appeal from the decision of the Court of Appeal for Ontario on a question referred for its consideration by the Government of Ontario. The question reads as follows: Is Bill 30, An Act to amend the Education Act inconsistent with the provisions of the Constitution of Canada including the Canadian Charter of Rights and Freedoms and, if so, in what particular or particulars and in what respect?” Main Issues – The sole issue was whether Bill 30 is consistent with the Constitution of Canada. Three distinct questions were addressed on this appeal.

1. Is Bill 30 a valid exercise of the provincial power in relation to education under the opening words of s. 93 and

s. 93(3) of the Constitution Act, 1867? 2. Is Bill 30 a valid exercise of provincial power because it returns to Roman Catholic separate school supporters

rights which were constitutionally guaranteed to them by s. 93(1) of the Constitution Act, 1867? The Court was urged to decide this question regardless of its answer to the first question in order to obviate any further controversy concerning the rights and privileges of Roman Catholic separate school supporters in Ontario.

3. If an affirmative answer were given to either or both the above questions, whether the Constitution Act, 1982, and in particular the Charter, is applicable to Bill 30 and, if so, to what extent and with what effect.

Main Holdings – “Bill 30 was a valid exercise of the provincial power to return rights constitutionally guaranteed to separate schools by s. 93(1) of the Constitution Act, 1867.” “Even if Bill 30 were supportable only under the

province's plenary power and s. 93(3), it is protected from Charter review. Rights or privileges conferred by post‑

Confederation legislation under s. 93(3) are not "guaranteed" within the meaning of s. 29 of the Constitution Act,

1982 in the same way as rights or privileges under s. 93(1). It is clear from the wording of s. 93(3) that post‑Confederation legislation referred to in that subsection may be subsequently amended or repealed by the legislature which passed it in a way which affects rights or privileges initially granted by it. The rights or privileges protected by s. 93(1), on the other hand, cannot be prejudicially affected. However, both are immune from Charter review even without s. 29 because the whole of s. 93 represents a fundamental compromise of Confederation in relation to denominational schools. The section 93(3) rights and privileges are not guaranteed in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them but they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education. The protection from Charter review in the case of s. 93(3) lies not in the guaranteed nature of the rights and privileges conferred on denominational schools by the legislation passed under it but in the guaranteed nature of the province's plenary power to enact such legislation. The Confederation compromise in relation to education is not displaced by the Constitution Act, 1982.” Hyperlink to case: Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148

The Queen v. Jones , [1986] 2 S.C.R. 284

Education; Right of a Parent to Educate Chi ldren

Basic Facts - “The Appellant was the pastor of a fundamentalist church. He educated his three children and others in a school operated in the church basement. He refused to send his children to school as required by s. 142(1) of the Alberta School Act. He also refused to seek an exemption under either s. 143(1)(a) or (e) which excuse a child from attending public school. He was charged with truancy under the School Act.”

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Main Issues - Did the Alberta School Act offend s.2(a), s.7 of the Charter, and principles of fundamental justice? Main Holdings – Appeal dismissed. Assuming the sincerity of the Appellant's convictions, the effect of the School Act did constitute some interference with the Appellant's freedom of religion. The interference however, did not unreasonably interfere with a parent's right to teach children in accordance with his religious convictions and is demonstrably justified in a free and democratic society. A reasonable measure taken to ensure the "efficient instruction" of the young, such as a requirement that a person who gives instruction at home or elsewhere have that instruction certified as being sufficient, is a reasonable limit on the freedom of a parent. In terms of proportionality, it would not be reasonable to permit the Appellant to ignore the law on a matter as important as the education of the young. Even assuming that liberty as used in s. 7 of the Charter does include the right of parents to educate their children as they see fit, the impugned provisions of the School Act did not deprive the Appellant of that right in a manner that was not in accordance with the principles of fundamental justice. The Act creates a system which ensures compliance with the requirements that the province considers necessary to advance its interest in the quality of education. The provinces may set the type of administrative structure that will suit their needs unless the use of such structure is in itself so manifestly unfair, regarding the decisions it is called upon to make, as to violate the principles of fundamental justice. That was not the case in this instance. Hyperlink to case: The Queen v. Jones, [1986] 2 S.C.R. 284

EXPRESSION CASES

Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11

Hate Speech; Freedom of Religion and Expression

Basic Facts - Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers published and distributed by W. The complainants alleged that the flyers promoted hatred against individuals on the basis of their sexual orientation. A tribunal was appointed to hear the complaints. It held that the flyers constituted publications that contravened s. 14 of The Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation, and concluded that s. 14 of the Code was a reasonable restriction on W’s rights to freedom of religion and expression guaranteed by s.2(a) and (b) of the Charter. The Court of Queen’s Bench upheld the tribunal’s decision. The Court of Appeal accepted that the provision was constitutional but held that the flyers did not contravene it. Main Issues – Did s.14(1)(b) of the Saskatchewan Human Rights Code infringe the Appellant’s s.2(a) and (b) rights under the Charter? Main Holdings – Section 14(1)(b) of the Code infringes W’s rights under both s.2(a) and (b) however, the infringement is justified under s. 1 of the Charter. “A prohibition of any representation that “ridicules, belittles or otherwise affronts the dignity of” any person or class of persons on the basis of a prohibited ground is not a reasonable limit on freedom of religion. Those words are constitutionally invalid and are severed from the statutory provision in accordance with these reasons. The remaining prohibition of any representation “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is a reasonable limit and demonstrably justified in a free and democratic society.” (at para. 206). Hyperlink to case: Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11

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Ross v. New Brunswick School District No. 15 , [1996] 1 S.C.R. 825

Freedom of Expression; Right of Teacher to Espouse Discriminatory Statements

Basic Facts – School teacher, R, made anti-Sematic comments against Jews during his off-duty time. A parent of a student filed a complaint with the New Brunswick Human Rights Commission claiming a violation of s.5(1) of the Human Rights Act. The School Board was directed to impose an order against R which included, among other things, a leave of absence without pay for 18 months. The Court of Appeal allowed R's appeal, holding that clauses 2(a), (b) and (c) of the order violated his freedom of expression and religion and was not justified under s. 1. Main Issues – Did the order imposed on R violate his s.2(a) freedom of religion and s.2(b) freedom of expression under the Charter of Rights and Freedoms? Main Holdings – The Appeal was allowed in part. Section 2(a) and (b) of the Charter infringed R’s freedom of expression. The order of the board attempted to remedy discrimination by preventing R from publicly holding and communicating his views while being a school teacher. In its purpose and effect the order restricted R’s freedom of expression and violated s.2(b). The order also infringed on R’s 2(a) freedom of religion. Assuming the beliefs were sincere, it is not open to the courts to question their validity. “Both ss. 2(a) and 2(b) must be given a broad interpretation, generally leaving competing rights to be reconciled under the s. 1 analysis.” Clauses 2(a), (b) and (c) of the order imposed on R (removal from teaching position) were rationally connected to the order's objective and did so in a manner which minimally impaired his constitutional freedoms. “The objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on R produced by these clauses. Clauses 2(a), (b) and (c) of the order are justified under s. 1 and were properly made within the Board's jurisdiction.” Clause 2(d) of the order (permanent ban) against R however, failed to meet the minimal impairment branch of the s.1 analysis. Hyperlink to case: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825

Saumur v. Quebec (City) , [1953] 2 S.C.R. 299

Expression; Right to Disseminate Religious Literature in the Streets

Basic Facts – Quebec by-law no. 184 prohibited the distribution of literature in the streets unless so authorized by the Chief of Police. Samur argued he had an absolute right to express his opinions concerning religion as a valid exercise of the freedom of speech, press, and religion and the by-Law was ultra vires the jurisdiction of Quebec. Main Issues – Was the by-Law ultra vires? Main Holdings – The Appeal was allowed. The by-Law did not extend to prohibit the Appellant from distributing literature in the streets of the city and officers and agents were to be restrained from interfering with such distribution. Since the by-law is legislation in relation to religion and free speech and not in relation to the administration of the streets, and since freedom of worship and of the press are not civil rights or matters of a local or private nature in the Provinces, the subject-matter of the by-law was beyond the legislative power of the Province. Hyperlink to case: Saumur v. Quebec (City), [1953] 2 S.C.R. 299

BLOOD TRANSFUSION CASES

Manitoba (Director of Child & Family Services) v. C. (A.), 2009 SCC 30

Blood Transfusions; Right of Minor to Refuse Necessary Medical Treatment

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Basic Facts – AC, a 14-year-old Jehovah's Witness with Crohn's disease, signed an advance medical directive advising that she not be given blood. AC's doctor was of the opinion that AC required a blood transfusion. AC and her parents refused to consent to a transfusion due to religious convictions. The hospital contacted the Director of Child and Family Services, who apprehended AC as a child in need of protection under the Child and Family Services Act ("CFSA") and applied for an order authorizing transfusions. The Director applied for an expedited hearing. The trial judge assumed AC had capacity and that she had refused a transfusion, and taking into account AC's medical directive, determined that, given the immediate danger of serious damage or possibly death, it was in AC's best interests pursuant to s. 25(8) of the CFSA to order transfusions. AC was transfused and recovered but remained at risk for future bleeds. AC and her parents appealed the decision, asking that the order be set aside and ss. 25(4), 25(8) and 25(9) of the CFSA be declared unconstitutional as infringing on AC's rights under ss. 2(a), 7 and 15(1) of the Canadian Charter of Rights and Freedoms. The Appeal was dismissed. AC appealed. Main Issues – Whether the provision of the Child and Family Services Act were in violation of the Charter. Main Holdings – The appeal was dismissed. “The provisions of the Child and Family Services Act were not in violation of the Charter. When the young person’s best interests are interpreted in a way that sufficiently respects

his or her capacity for mature, independent judgment in a particular medical decision‑making context, the constitutionality of the legislation is preserved. Properly construed to take an adolescent’s maturity into account, the statutory scheme strikes a constitutional balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision making in connection with his or her body, and the law’s equally persistent attempts to protect vulnerable children from harm.” “When the “best interests” standard is properly interpreted, the legislative scheme created by ss. 25(8) and 25(9) of the Child and Family Services Act does not infringe ss. 7, 15 or 2(a) of the Charter because it is neither arbitrary, discriminatory, nor violative of religious freedom. Under s. 7 of the Charter, while it may be arbitrary to assume that no one under the age of 16 has capacity to make medical treatment decisions, it is not arbitrary to give them the opportunity to prove that they have sufficient maturity to do so (at paras. 98, 107).” Hyperlink to case: Manitoba (Director of Child & Family Services) v. C. (A.), 2009 SCC 30

B.(R) v Children`s Aid Society , [1995] 1 SCR 315

Blood Transfusion; Parental Right to Choose Medical Treatment of Infants (Baby)

Basic Facts – Child was born premature. Parents objected to her receiving blood transfusions as a part of her treatment for religious reasons. Doctors believed her life was in danger and that blood transfusions may be necessary. Provincial proceedings were commenced for the child and the judge granted wardship of the Child to the Children’s Aid Society, initially for 72 hours and was then extended for 21 days. During that time the child received a blood transfusion. The child later returned to the parents. Parents appealed the wardship orders. Appeal efforts were dismissed. The parents appealed to the Supreme Court of Canada on the question of whether s. 19(1)(b )(ix) of the Ontario Child Welfare Act, which defines "child in need of protection," together with the powers in s. 30(1)2 and 41 and the procedures in s. 21, 27, 28(1), 28(10), and 28(12), offended the Charter of Rights and Freedoms. Main Issues – Did the Child Welfare Act, which defines "child in need of protection", together with the powers in ss. 30(1)2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12), deny parents a right to choose medical treatment for their infants, contrary to s. 7, or s. 2(a) Charter rights? Main Holdings – The effect of the law infringed the appellant’s freedom to choose medical treatment for their child in accordance with their faith convictions however, the infringement with s.2(a) was justified under s.1 of the Charter. Parents cannot refuse medical treatment that is necessary and for which there is no reasonable alternative in the exercise of their right to nurture their children. Parents are found to have "the right ... to rear their children according to their religious beliefs" within s. 2(a) (at p. 215), subject to the limits of s. 1.

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Hyperlink to case: B.(R) v Children`s Aid Society, [1995] 1 SCR 315

ABORTION, EUTHANASIA & THE CRIMINAL CODE

Rodriguez v. British Columbia (Attorney General) , [1993] 3 S.C.R. 519

Euthanasia; Assisted Suicide

Basic Facts - “The petitioner, 42, was suffering from amyotrophic lateral sclerosis, an incurable, progressive disease affecting the nervous system, leading to extensive muscle wasting. Victims of the disease generally die within two to three years of first diagnosis, due to wasting of the muscles used in breathing. Prior to that time, victims experience difficulty with speech, chewing and swallowing. Feeding eventually must be done by stomach tube and the victim requires total care as most bodily functions are lost. Death generally results from starvation or choking. The petitioner wished to avoid the future stress and loss of dignity caused by the prospect of such a death and she proposed to have a physician install an intravenous line containing some effective agent which, at the appropriate time, the petitioner would be able to transfer into her body by activating a switch, ending her life. She applied for an order declaring invalid s. 241 of the Criminal Code, which makes aiding or abetting a suicide a criminal offence. She relied on ss. 7, 12 and 15(1) of the Charter. Her application was dismissed, as was her appeal. She appealed to the Supreme Court of Canada.” Main Issues – Did s. 241(b) of the Criminal Code infringes s. 7, 12, or 15 of the Charter? Main Holdings - Appeal dismissed. Majority ruled that there was no violation of s.7 of the Charter. Section 7 encompasses notions of person autonomy and the right to make choices concerning one’s own body. Section 241(b) deprived the Appellant of autonomy over her person, causing pain and impinging her security of the person. Any deprivation however, is not contrary to the principles of fundamental justice. “Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of s. 7.” “The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241(b) therefore does not infringe s. 7 of the Charter.” “As well, s. 241(b) of the Code does not infringe s. 12 of the Charter. The petitioner was not subjected by the state to any form of cruel and unusual treatment or punishment.” “Assuming that the prohibition on assisted suicide in s. 241(b) of the Code infringes s. 15 of the Charter, any infringement is clearly justified under s. 1 of the Charter. Section 241(b) has a pressing and substantial legislative objective and meets the proportionality test. A prohibition on giving assistance to commit suicide is rationally connected to the purpose of s. 241(b), which is to protect and maintain respect for human life. To introduce an exception to the blanket protection for certain groups would create an inequality. Finally, the balance between the restriction and the government objective is also met.” Hyperlink to case: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

R. v. Morgentaler , [1993] 3 S.C.R. 463

Abortion; Distribution of Powers; Pith and Substance Doctrine

Basic Facts – “In March 1989, in order to prevent the establishment of free‑standing abortion clinics in Halifax, the Nova Scotia government approved regulations prohibiting the performance of an abortion anywhere other than in a place approved as a hospital as well as a regulation denying medical services insurance coverage for abortions performed outside a hospital (the "March regulations"). The government later revoked these regulations and adopted the Medical Services Act and the Medical Services Designation Regulation, which continued the prohibition of the performance of abortions outside hospitals and the denial of health insurance coverage for

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abortions performed in violation of the prohibition. Despite these actions, the respondent opened his clinic and performed 14 abortions. He was charged with 14 counts of violating the Medical Services Act. The trial judge held that the legislation was ultra vires the province because it was in pith and substance criminal law and acquitted the Respondent. This decision was upheld by the Court of Appeal.” Main Issues - Whether the Nova Scotia Medical Services Act, R.S.N.S. 1989, c. 281, and the regulation made under the Act, N.S. Reg. 152/89, are ultra vires the province of Nova Scotia on the ground that they are in pith and substance criminal law. Main Holdings - The Appeal was dismissed. ”The Medical Services Act and its regulation were criminal law in pith and substance and consequently ultra vires the province. The legislation was suspect on its face in dealing with a subject historically considered part of the criminal law. It was aimed primarily at suppressing the perceived public harm or evil of abortion clinics. Its primary objective was to prohibit abortion outside hospitals as socially undesirable conduct. Any concern with safety and security of pregnant women or with health care policy, hospitals or the regulation of the medical profession was merely ancillary. It was unnecessary to conclude whether the practical effect of the legislation would restrict abortion in Nova Scotia. The Act and regulation were ultra vires in their entirety and could not be severed.” Hyperlink to case: R. v. Morgentaler, [1993] 3 S.C.R. 463

R. v. Gruenke, [1991] 3 S.C.R. 263

Criminal; Admissibil ity of Communications with Pastor as Privileged

Basic Facts – “The 82-year-old victim befriended the 22-year-old accused, and in his will left her a life interest in his estate. The victim began to make unwelcome sexual advances toward the accused, which became more and more insistent over time. About that time the accused began attending a born-again Christian church and was assigned a counsellor by the church pastor. When the victim was later found dead in the front seat of his car with his head severely battered, the accused and her boyfriend were charged with first degree murder.” “This Appeal from a conviction for first degree murder involves the admissibility of evidence, given by a pastor and lay counsellor of a fundamentalist Christian church, regarding communications made to them by the Appellant about her involvement in the crime.” Main Issues – Were the communications between the accused and her pastor protected by common law privilege, or alternatively, protected as confidential communications and therefore inadmissible on the basis of the common law and of s.2(a) of the Charter of Rights and Freedoms? Main Holdings – Appeal dismissed. Convictions upheld. “While the value of freedom of religion, embodied in s.2(a), is significant in particular cases, this value need not necessarily be recognized in the form of a prima facie privilege in order to give full effect to the Charter guarantee. The extent (if any) to which disclosure of communications will infringe an individual's freedom of religion depends on the particular circumstances involved. Relevant factors include the nature of the communication, the purpose for which it was made, the manner in which it was made, and the parties to the communication.” There is no common law, prima facie privilege for religious communications. Such privilege would constitute an exception to the general principle that all relevant evidence is admissible. The policy reasons which underlie the class privilege for solicitor-client communications are not equally applicable to religious communications because solicitor-client privilege is essential to effective operation of the legal system. Solicitor-client communications are inextricably linked with the very system which desires disclosure of the communications, while religious communications are not so linked. Religious communications can be excluded in particular cases where the Wigmore criteria are satisfied. These criteria are not "carved in stone" but provide a general framework for a case-by-case analysis on the facts of each case, informed both by the Charter guarantee of freedom of religion under s.2(a) and by the general interpretive statement regarding Canada's multicultural heritage in s.27. Here the

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communications in question did not satisfy the first Wigmore criterion as they did not originate in confidence that they would not be disclosed. In fact, the accused told the counsellor and pastor she was going to turn herself in. These communications were made more to relieve her emotional distress than for a religious or spiritual purpose. Hyperlink to case: R. v. Gruenke, [1991] 3 S.C.R. 263

Tremblay v. Daigle , [1989] 2 S.C.R. 530

Abortion; Rights of a Foetus; Right of Father to Stop Abortion

Basic Facts – “The parties ended their relationship after five months of cohabitation. The appellant was 18 weeks pregnant at the time of the separation and decided to terminate her pregnancy. The respondent, the father of the unborn child, obtained an interlocutory injunction from the Superior Court preventing her from having the abortion. The trial judge found that a foetus is a "human being" under the Quebec Charter of Human Rights and Freedoms and therefore enjoys a "right to life" under s. 1. This conclusion, he added, was in harmony with the Civil Code's recognition of the foetus as a juridical person. He then ruled that the respondent had the necessary "interest" to request the injunction. The trial judge concluded, after considering the effect of the injunction on the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms and s. 1 of the Quebec Charter, that the foetus' right to life should prevail in the present case. The injunction was upheld by a majority of the Court of Appeal.” Main Issues – Was the interlocutory injunction prohibiting the mother from having an abortion valid? Main Holdings – Appeal allowed and the injunction was set aside because the substantive rights which were alleged to support it – the rights accorded to a foetus or a potential father – do not exist. The Quebec Charter of Human Rights and Freedoms could not support the ruling prohibiting the mother from having an abortion. The Court indicated that the Canadian Charter could not be invoked in this case to support the injunction as it was a civil action between two private parties and there was no applicable impugned state action. The court indicated the father could point to no law of any sort which he could claim is infringing his right or anyone else’s right. Nothing in Quebec legislation or case law could support the father’s argument that his interest in the foetus he helped create gave him the right to veto a woman’s decision in respect of the foetus. Hyperlink to case: Tremblay v. Daigle, [1989] 2 S.C.R. 530

R. v. Morgentaler , [1988] 1 S.C.R. 30

Abortion; Life, Liberty, & Security of the Person; Freedom of Conscience

Basic Facts – “The accused doctors set up a clinic to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s. 251(4) of the Criminal Code. They made public statements questioning the wisdom of the abortion laws in Canada and asserting that a woman has an unfettered right to choose whether an abortion is appropriate in her individual circumstances. They were charged with conspiracy to use an induced suction method to procure the miscarriage of female persons contrary to ss. 251(1) and 423(1)(d) of the Criminal Code.” “The Ontario Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial, holding that the abortion provisions in the Criminal Code were constitutional.” The accused appealed. Main Issues – Did s.251 of the Criminal Code of Canada violate s.2(a), 7, 12, 15, and 28 Charter rights? Whether any violation is justified under s.1 of the Charter? Main Holdings – Appeal allowed. Section 251 was unconstitutional and violated on s.7 of the Charter. The violation of the right of a pregnant woman to "security of the person" in s. 7 caused by s. 251 of the Criminal Code, s. 251 is not justified by s. 1 of the Charter. Previous acquittal restored. Section 251 of the Code impairs the security of the

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person and clearly interfered with a woman's bodily integrity in both a physical and an emotional sense. Also, delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 was itself an infringement of the purely physical aspect of the individual's right to security of the person. The procedures created in s. 251 of the Criminal Code for obtaining a therapeutic abortion do not comport with the principles of fundamental justice. Justice Wilson, writing a concurring opinion stated that the s.7 violation was present and consequently violated s.2(a) of the freedom of conscience as s.2(a) is an individual freedom and should be broadly construed to extend to conscientiously held beliefs, whether grounded in religion or in a secular morality and the terms "conscience" and "religion" should not be treated as tautologous if capable of independent, although related, meaning. Hyperlink to case: R. v. Morgentaler, [1988] 1 S.C.R. 30

RELIGIOUS DRESS, & OTHER PRACTICES

R. v. S. (N.), 2012 SCC 72

Criminal Law; Right to Wear Religious Face Covering in Criminal Proceedings

Basic Facts – Two accused were charged with having sexually assaulted S, the Appellant. S, who was Muslim, wished to testify while wearing the niqab, which covered her entire face, except for her eyes. Based on the fact that S had removed the niqab for her driver's licence photo and said she would do so for a security check, the preliminary inquiry judge concluded that her beliefs were not sufficiently "strong" and ordered her to remove her niqab. Main Issues – When, if ever, can a witness who wears a niqab for religious reasons be required to remove it while testifying? Two sets of Charter rights are potentially engaged — the witness’s freedom of religion and the accused’s fair trial rights, including the right to make full answer and defence. Main Holdings – The Appeal was dismissed. Where a witness wears a niqab because of a sincerely held religious belief, a judge should order it removed if the wearing of the niqab poses a serious risk to trial fairness, there is no way to accommodate both rights, and the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so. If there are no "reasonably available alternative measures" that would avoid the conflict between competing interests, the judge must then determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects. Where a conflict cannot be avoided, clashes between rights should be approached by case-by-case balancing.

Hyperlink to case: R. v. S. (N.), 2012 SCC 72

Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37

Right to Subject Drivers to Photos for Licenc ing Purposes Contrary to Religious Convictions

Basic Facts – Alberta requires all persons who drive motor vehicles on highways to hold a photo driver's licence. Members of a religious Hutterite colony objected to having their photographs taken on religious grounds (they had previously received exemptions for photographs). They sincerely believed that the Second Commandment prohibited them from having their photograph willingly taken. The chambers judge and the majority of the Court of Appeal held that the infringement was not justified under s. 1 of the Charter. The regulation was found to be unconstitutional and of no force and effect. The province appealed.

Main Issues – Did mandating photos on driver’s licenses infringe the Appellants s.2(a) freedom of religion under the Charter? If yes, was the infringement justified under s.1 of the Charter?

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Main Holdings – The Appeal was allowed. The universal photo requirement was justified under s. 1 of the Charter. The goal of setting up a system that minimized the risk of identity theft associated with driver's licences was a pressing and important public goal, capable of justifying limits on rights. The infringement was a reasonable limit prescribed by law.

Hyperlink to case: Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37

Multani v. Marguerite-Bourgeoys (Commission scolaire), 2006 SCC 6

Religious Dress; Freedom to Wear Religious Kirpan While Attending School ; Admin Law

Basic Facts – The Appellant’s religion required him to wear a kirpan (religious bladed object) at all times. The school which the Appellant attended allowed the wearing of the kirpan provided it was sealed inside his clothing. The school’s governing Board however, refused to ratify this rule on the basis that it violated art. 5 of the school’s code of conduct prohibiting the carrying of weapons. The governing Board’s council suggested that a symbolic or kirpan made of harmless material could instead be worn. The Appellant appealed the decision. The Court of Appeal concluded that the Appellant’s freedom of religion under s. 2(a) of the Charter and s. 3 of Quebec’s Charter of Human Rights and Freedoms was infringed but was justified for the purposes of s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter of Human Rights and Freedoms.

Main Issues – Did the decision to impose a ban on the wearing of a kirpan at school infringe the religious freedom of the appellant? Did the decision infringe his s.2(a) Charter rights?

Main Holdings – The Appeal was allowed. The council’s decision to prohibit the appellant from wearing his kirpan to school infringes his freedom of religion. The Appellant held a genuine and sincere religious belief. The interference with his religious right was neither trivial nor insignificant as it deprived him of his right to attend school. The infringement of his s.2(a) rights could not be justified under s.1 of the Canadian Charter. Although the council’s decision to prohibit the wearing of a kirpan was motivated by a pressing and substantial objective, (to ensure safety at the school), and was rationally connected with the objective, it was not shown that such a prohibition minimally impaired the appellant’s rights. An absolute ban on wearing a kirpan did not fall within a range of reasonable alternatives. The deleterious effects of a total prohibition thus outweigh its salutary effects.

Hyperlink to case: Multani v. Marguerite-Bourgeoys (Commission scolaire), 2006 SCC 6

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

Employment; Bona Fide Occupational Requirement ; Religious Dress

Basic Facts - “CN introduced a work rule that all employees wear a hard hat at a particular work site. Bhinder, a Sikh employee, refused to comply because his religion did not allow the wearing of headgear other than the turban. Bhinder's employment ceased since the company refused to make exceptions to the rule and Bhinder refused to accept other work not requiring a hard hat. The Canadian Human Rights Tribunal found CN had engaged in a discriminatory practice and ordered reinstatement and compensation for loss of salary. The Federal Court of Appeal, on a s. 28 application, set aside that decision and referred the matter back for disposition on the basis that the work rule was not a discriminatory practice.”

Main Issues - Was the hard hat rule was a bona fide occupational requirement? Did the hard hat rule discriminate against Bhinder on religious grounds? Did the employer have a duty to accommodate?

Main Holdings - Appeal dismissed. Rule held to be a bona fide occupational requirement and thus not discriminatory as per s.14(a) of the Canadian Human Rights Act. The rule was honestly imposed in the interest of the performance and safety of workers. The majority of the Court held that when a requirement is found to be a bona fide occupational requirement that the employer has no duty to accommodate the employee. Hyperlink to case: Bhinder v. CN, [1985] 2 S.C.R. 561

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Jack and Charlie v. The Queen , [1985] 2 S.C.R. 332

Religious Practices; Prohibition on Hunting Interfering with the Freedom of Religion

Basic Facts - “Appellants, Coast Salish Indians, were charged with hunting deer out of season contrary to the British Columbia Wildlife Act. The deer had been killed for use in an ancient religious ceremony involving the burning of raw deer meat. Appellants were convicted at trial and their appeals, first to the County Court and then to the Court of Appeal, were dismissed.”

Main Issues - Was the Wildlife Act inapplicable because “it interfered with the freedom of religion, and with their aboriginal religion or hunting as a way of life such that it regulated Appellants qua Indians. The incident occurred before the proclamation of the Canadian Charter of Rights and Freedoms.”

Main Holdings - Appeal dismissed. “The prohibition of deer killing by the Wildlife Act raises no question as to religious freedom. Although the deer meat was intended to be used in a religious ceremony, the hunting and killing of the deer were not part of the ceremony. The ceremony could be carried out with deer meat retained in storage as provided for under the Act.”

Hyperlink to case: Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332

PROPERTY, CONTRACTS, & CORPORATIONS LAW

Syndicat Northcrest v. Amselem, 2004 SCC 47

Property; Contracts; Construction of Succahs on Balconies

Basic Facts – The Appellants, Orthodox Jews, set up “succahs” on their balconies for the purposes of fulfilling the biblically mandated obligation of dwelling in a small enclosed temporary hut during the annual nine day Jewish religious festival of Succot. The Respondent requested their removal, claiming they violated a by-Law provision prohibiting construction on unit balconies. The Respondent filed an application for a permanent injunction prohibiting the appellants from setting up succahs and, if necessary, permitting their demolition. The application was granted by the Superior Court and this decision was affirmed by the Court of Appeal.

Main Issues – Did the by-Laws containing a general prohibition against decorations and construction on balconies infringe the Appellant’s freedom of religion was protected under the Quebec Charter?

Main Holdings – The Appeal was allowed. There was no evidence that the Appellant’s were aware that signing an ownership declaration meant they waived their freedom of religion. There was no explicit reference to waiver of the Charter right to religious freedom in the agreement. “Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. In essence, religion is about freely and deeply held personal

convictions or beliefs connected to an individual’s spiritual faith and integrally linked to his or her self‑definition

and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”

Hyperlink to case: Syndicat Northcrest v. Amselem, 2004 SCC 47

Congrégation des témoins de Jéhovah St‑Jérôme‑Lafontaine v. Lafontaine, 2004 SCC 48

Property; Municipal Denial to Amend Zoning By-Law; Construction of a Place of Worship

Basic Facts – A Jehovah’s Witnesses group searched for a suitable parcel of land on which to establish a place of

worship in the Respondent municipality. A zoning by‑law allowed places of worship to be built in a regional community use zone. The Jehovah’s Witnesses felt no land was available in this zone. They then made a

conditional offer to purchase a lot located in a residential zone and applied for an amendment to the zoning by‑law. The amendment was refused. The Jehovah’s Witnesses instituted a proceeding for mandamus, alleging that

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the municipality’s refusal to amend its zoning by‑law violated their freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms. They also challenged the constitutionality of the provisions of the Act

respecting land use planning and development relating to the process for approving amendments to zoning by‑laws violated their freedom of religion.

Main Issues – Did the municipality lawfully deny an application for rezoning to permit the Jehovah’s Witness congregation to build a place of worship?

Main Holdings – The Appeal should be allowed. The matter should be remitted to the Municipality for reconsideration of the Congregation’s rezoning application. “In weighing the merits of the Congregation’s rezoning requests, the Municipality was discharging a duty delegated to it by the Legislature. The Municipality was bound to exercise the powers conferred upon it fairly, in good faith and with a view to the public interest. The Municipality did not fulfill its duty of procedural fairness in responding to the second and third rezoning applications brought by the Congregation because the Municipality gave no reasons for its denial. When making an administrative decision affecting individual rights, privileges or interests, a public body like a municipality is bound by a duty of procedural fairness whose content varies according to five factors.” “In refusing to justify its decisions, the Municipality breached its duty of procedural fairness. It acted in a manner that was arbitrary and straddled the boundary separating good from bad faith.”

Hyperlink to case: Congrégation des témoins de Jéhovah St‑Jérôme‑Lafontaine v. Lafontaine, 2004 SCC 48

Lakeside Colony of Hutterian Brethren v. Hofer , [1992] 3 S.C.R. 165

Excommunication and Expulsion of Members; Corporations

Basic Facts – Dispute between members of a Hutterite colony concerning patent rights to a hog feeder resulted in the expulsion of various members from the colony in accordance with Hutterite practice, procedure, and rules. The defendants did not leave the property.

Main Issues – Should the court assist the Respondent (plaintiff) Hutterite colony in enforcing its expulsion of the defendants from the colony? Was the expulsion carried out according to the applicable rules and the principles of natural justice?

Main Holdings – Appeal allowed, and earlier judgments set aside. Expelled members had not been properly expelled and thus remained members of the colony throughout. The organization operated as a corporation. “Natural justice requires procedural fairness no matter how obvious the decision to be made may be. Natural justice requires that notice be given of a meeting to consider the matter and that an opportunity be given to make representations concerning it.” “Natural justice required that they be given notice of the meeting to consider the matter, and opportunity to make representations concerning it. The member did not have notice that his expulsion was on the agenda of the first meeting because the colony did not then intend to expel him.” “As the three other defendants had no notice that their expulsion would be considered, their appeal should also be allowed. In the result, it was unnecessary to consider the issue of tribunal bias.”

Hyperlink to case: Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165

Hofer v. Hofer, [1970] S.C.R. 958

Property (communal); Hutterian Brethren; Expulsion of Members

Basic Facts – Appellants and families (Hutterian Brethren) were expelled after aligning themselves with a different faith offending the rules included within the articles of association. The Articles also provided that all property was held communally for the benefit of the members of the colony. The Appellants sought a declaration that their expulsion was invalid and a direction that assets be distributed equally among the parties. Basic Issues – Was the expulsion of the member valid based on the signed articles of association?

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Main Holding – Appeal dismissed. Legal rights of the parties were to be determined by reference to the articles of association of the colony (signed by the appellants). The contract was not contrary to public policy and was not in violation of the principle of the freedom of religion.

Hyperlink to case: Hofer v. Hofer, [1970] S.C.R. 958

Walter v. Alberta (Attorney General) , [1969] S.C.R. 383

Property; Land Acquisition Prohibited; The Communal Property Act , R.S.A. 1955, c. 52

Basic Facts – Challenge to the validity of The Communal Property Act, R.S.A. 1955, c. 52, arguing that the Act, which prevented the increase in communal holding of lands after a certain date. Mr. Walter wanted to sell his land to a colony and was prevented from doing so. Main Issues – Was the Communal Property Act, RSA, 1955, ch. 52, limiting land acquisition of certain colonies constitutionally valid? Main Holding – Held, per curiam. Appeal dismissed. The Act was created under valid provincial jurisdiction included in s.92(13) of the B.N.A. Act, 1867, ch. 3, because it dealt with property. The fact that the colonies upheld tenets which led to economic views related to land holding “did not mean that a provincial legislature, enacting land legislation which may run counter to such views, could be said in consequence to be legislating in respect of religion and not in respect of property.”

Hyperlink to case: Walter v. Alberta (Attorney General), [1969] S.C.R. 383

DISCRETIONARY POWER OF ELECTED OFFICIALS

Roncarelli v. Duplessis , [1959] S.C.R. 121

Valid Exercise of Discretionary Power; Denial of Liquor Licenc e in “Bad Faith”

Basic Facts – The Appellant, R (a Jehovah’s Witness) had been in the habit of providing bail for numerous members of that religious group who had been arrested for the sale of religious literature promoting their views (said to be insulting and offensive to the Roman Catholic faith). R ran a restaurant and as a result had been denied a renewal of his liquor license. As a result the restaurant lost profit and eventually closed down. R commenced an action against the respondent for damages caused as a result of the cancellation of the licence without legal or statutory authority. Main Issues – Was the discretionary decision to cancel the liquor license by the Premiere of Quebec valid? Main Holdings – Discretion of a public official is not absolute and untrammeled. No legislative Act can contemplate the use of unlimited arbitrary power without express language to that effect. The decision was made in bad faith and was also outside of this authority of the Premiere of Quebec. Hyperlink to case: Roncarelli v. Duplessis, [1959] S.C.R. 121