Bill 21 and the Search for True Religious Neutrality

The saga of Quebec’s Bill 21, An Act respecting the laicity of the State, trudges on. In December, the Quebec Court of Appeal upheld a Superior Court decision declining to suspend certain parts of the law – which prohibits front-line public employees from displaying overt religious symbols while on duty – until a full application for judicial review pursuant to the Charter of Rights and Freedoms could be heard. The applicants who sought the suspension claim that Bill 21 violates (among other things) the guarantees of freedom of religion and the right to equality respectively protected by sections 2(a) and 15 of the Charter. An appeal to the Supreme Court of Canada is expected to be heard on the suspension issue. Meanwhile, the Superior Court has ordered that three other Charter challenges which have been launched in the interim be heard at the same time as the original application for judicial review.

The Quebec government insists that Bill 21 is grounded in the constitutional principle of the religious neutrality of the state. Such descriptions, however, fundamentally misstate what religious neutrality ought to require of state actors. At its core, Bill 21 is inconsistent with the trajectory of religious neutrality in Canadian public law. Granted, this principle has been subject to conflicting scholarly and judicial visions of what the state’s constitutional obligations are vis-à-vis religion. Yet as I argue in this post, religious neutrality, holistically and purposively understood, ensures that the state treats religious adherents fairly by preserving equal space for their participation in public life.

Canadian conceptions of religious neutrality tend to fall along a spectrum. At one end we have those who see religious neutrality as essentially privatizing all aspects of religious belief. We might describe this as closed religious neutrality, to borrow language used by Janet Epp Buckingham. In its most extreme form, this type of neutrality seeks to purge any and all expressions of religious conviction from the public square. Only secular or irreligious worldviews can inform public discourse, and the state is prevented from even indirectly facilitating religious expression. Richard Moon describes this approach to religious neutrality as essentially relegating matters of religious faith to the private sphere, subject to a view that “[s]tate neutrality is possible only if religion can be treated as simply a private matter — separable from the civic concerns addressed by the state” (para 4).

On the other end of the spectrum we have what I call inclusive religious neutrality. Unlike closed approaches to religious neutrality, inclusive religious neutrality recognizes that the state is only one of numerous actors in the public square and has no jurisdiction to exclude religious perspectives from public life. Under this conception of religious neutrality, the state is permitted and even encouraged to preserve and create positive public space for religious adherents (such as, for example, by subsidizing charitable religious activities which pursue a common or public good) so long as it does so in an even-handed manner and does not privilege one religious group to the exclusion of others.

Inclusive religious neutrality affirms that the state is not competent to arbitrate religious debates, even where these disputes have public implications. This is subject to the obvious caveat that the state will always have a vested interested in curbing or discouraging objectively harmful religious practices. But beyond this otherwise narrow exception, it is rarely appropriate for the state to act in a way that has the effect of promoting or stigmatizing certain religious beliefs or practices. Inclusive religious neutrality is thus reinforced by equality-enhancing values which recognize that the state’s uneven support for certain beliefs suggests that those who do not adhere to these beliefs are less deserving of public citizenship.

Although not necessarily identified as such, the constitutional commitment to equality was one of the driving forces behind Chief Justice Brian Dickson’s oft-quoted decision in R v Big M Drug Ltd Mart, [1985] 1 SCR 295 [“Big M”], the first Charter-era ruling from the Supreme Court on freedom of religion. While the Chief Justice recognized that the guarantee of freedom of religion is grounded in principles of individual liberty, his reasons also highlighted why explicitly religious laws (in that case legislation requiring businesses to observe the Christian Sabbath) will run afoul of the Charter, noting that the “theological content of … legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture” (para 97).

On this point, Bruce Ryder has written at length about how the Canadian constitutional commitment to substantive equality intersects with the right of religious adherents to participate in public life as equal citizens. As Ryder explains:

[T]he Canadian conception of equal religious citizenship is not confined to a private or religious sphere of belief, worship and practice. Instead, a religious person’s faith is understood as a fundamental aspect of his or her identity that pervades all aspects of life. … They have a right to participate equally in the various dimensions of public life without abandoning the beliefs and practices their faith requires them to observe. In contrast, some other liberal democracies are more likely to insist that citizens participate in public institutions on terms that conform to the state promotion of secularism. On this view, equal religious citizenship is confined to the private sphere, and must give way to the secular requirements of public citizenship. (2)

Inclusive religious neutrality, as I have described it here, is inextricably tied to Ryder’s articulation of the concept of equal religious citizenship. Religious neutrality presumes that religion is no more or less immutable than the other grounds of discrimination enumerated in section 15 of the Charter. This is to say that religion is “constructively immutable”, which means that it is just as impermissible for the state to discriminate against someone because of their religious beliefs or identity as it is to discriminate on the basis of immutable grounds such as race or gender. While this point may seem trite, laws and policies like Bill 21 are a sobering reminder of the tendency of many state actors to treat religious belief as something which can be readily detached from a person’s core identity.

It should be clear by now that religious neutrality is more than a derivative duty imposed on the state by some combination of sections 2(a) and 15 of the Charter. Indeed, it would be a critical mistake to conclude that religious neutrality begins and ends with the text of the Constitution. The dyadic guarantees of religious freedom and religious equality, as the Supreme Court affirmed in Saumur v Quebec (City), [1953] 2 SCR 299 [“Saumur”], are “a fundamental principle of our civil polity” (342). Religious neutrality is thus a pre-existing, foundational and enforceable legal principle which explains why the Charter protects religious adherents. Without a proper understanding of what religious neutrality demands, there is no principled reason why the state should be prevented from pursing an ecclesiastical agenda or discriminating against religious adherents.

Granted, the very idea of religious neutrality, whether closed or inclusive, is ultimately a conceit. From a philosophical perspective, policy-making is a fundamentally normative undertaking. Whenever the state implements or pursues a given policy – no matter how benign – it is making a statement about what society ought to look like. Such declarations are informed by assumptions about what morality and justice demand. In this way, Benjamin Berger explains, “religion will have much to say about matters of broad public policy import”, in that the state’s adoption “of positions on such matters will … involve position-taking on matters of deep religious interest” (772).

When viewed from an inclusive perspective, however, the state’s duty of religious neutrality does not bestow the state with a “secularizing mission” – quite the opposite. Secularism, like all worldviews, is built on assumptions about divinity, society and what it means to be human. In other words, secularism is itself a religion. Although this may seem counterintuitive, religion, functionally defined, does not require faith in a higher deity or even the supernatural. As American political theologian Jonathan Leeman writes, “any and every position that a person might adopt in the political sphere relies upon a certain conception of human beings, their rights and their obligations toward one another, creation and God” (81). In this sense, Leeman explains, religion “determines … the worldview lens through which we come to hold our political commitments.” (Id) Thus, everyone is, to some degree, religious. This is why an inclusive approach to religious neutrality seeks to ensure that the state does not directly or indirectly support irreligious worldviews over religious ones. If irreligiosity is just another form of religion, then official state support for irreligion will favour some religious adherents (namely secularists, atheists and agonistics) over others.

Since the advent of the Charter, the Supreme Court has trended toward the inclusive conception of religious neutrality which I have outlined above. As noted, Dickson CJC’s reasons in Big M prevent majoritarian religions from excluding minority religious groups from public life. In the decades since this landmark ruling, the Supreme Court has articulated with increasing precision what the state’s duty of religious neutrality entails. The Court’s majority ruling in S.L. v Commission scolaire des Chênes, 2012 SCC 7 [“S.L.”] is particularly instructive, in which Deschamps J found that neutrality is realized when “the state neither favours nor disfavours any particular religious belief, that is, when it shows respect for all postures toward religion, including that of having no religious beliefs whatsoever” (para 32).

Justice Gascon’s majority reasons in the Supreme Court’s subsequent ruling in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 take Deschamps J’s observations from S.L. even further. A truly neutral public space, Gascon J noted, “does not mean the homogenization of private players in that space” since “[n]eutrality is required of institutions and the state, not individuals” (para 74). Religious neutrality thus protects the “freedom and dignity” of believers and non-believers alike, and in doing so promotes and enhances Canadian diversity (Id).

Bill 21 is a quintessential example of how a closed approach to religious neutrality excludes religious minorities from the full benefits of public citizenship, contrary to Gascon J’s vision of “a neutral public space that is free of discrimination and in which true freedom to believe or not believe is enjoyed by everyone equally” (Id). Despite what its proponents may argue, Bill 21 does not preserve a religiously neutral public space, but instead forces front-line public employees to give the appearance of irreligiosity to the extent that they want to keep their jobs. The Quebec government’s decree that these employees hide their faith-based identities while undertaking their public duties is actually an insistence that they adopt completely alien religious identities if they are to participate fully in public life. Such a policy is anathema to an inclusive conception of religious neutrality.

None of this is to say that the Charter challenges which have been launched against Bill 21 are certain or even likely to succeed. The Quebec government’s invocation of the section 33 override – allowing Bill 21 to operate notwithstanding violations of sections 2(a) and 15 of the Charter – makes the outcome of any application for judicial review uncertain. Yet as others (including on this blog) have observed, there are a number of compelling arguments to be made that section 33 does not insulate Bill 21 against infringements of section 28 (i.e. the equal application of the Charter to men and women) or violations of the federal division of legislative powers.

In a similar vein, a strong argument can be made that section 33 cannot be invoked to insulate Bill 21 against violations of religious neutrality, since this constitutional duty pre-dates and exists independent of the Charter. This is not to say that religious neutrality is an unwritten constitutional principle, per se, since unwritten principles cannot be used to fill in perceived gaps in the rights and freedoms guaranteed by the Charter. The unwritten constitutional principles which have been recognized by the Supreme Court (namely federalism, democracy, constitutionalism and the rule of law, and the protection of minorities) differ from religious neutrality in that the latter is grounded in specific pre-Charter constitutional protections which directly inform enforceable Charter guarantees. To use section 33 to override the state’s duty of religious neutrality would be, in the language of Saumur, to circumvent “an admitted principle” of Canadian public law (342). Advocates for the rights of religious minorities can only hope the courts will agree.

For a more thorough examination of the development of the principle of religious neutrality in Canadian law, see my paper “Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter”, (2019) 91 SCLR (2d) 219.

Day Five: Matthew Harrington

Religious dissent

Université de Montréal

One of the most disappointing trends in Supreme Court jurisprudence is the increasing tendency to treat religion as a purely individual, private matter. In hindsight, Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 and Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, which seemed at the time to open up a wide range of new claims based on freedom of religion, appear to have been a short-lived detour. Since those decisions, the Court has had difficulty attempting to define the extent and breadth of religion claims in the public square, especially when those claims involve the rights of religious groups. Three dissents, in particular, show how the Court is moving away from the traditional notion of freedom of religion and slipping into a mindset that privileges irreligion rather than neutrality.

Justice Abella in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

Hutterian Bretheren marks a significant turning point in the Supreme Court’s approach to the protection of religious liberty under Section 2(a) of the Charter.  The case involved a challenge to Alberta’s requirement that persons seeking a driver’s licence submit to having their photo taken. The Wilson Colony objected on the grounds that taking a photo would violate the Second Commandment prohibition on the making of “graven images”. The majority rejected the claim, asserting that the deleterious effects on the Hutterites’ ability to practise their religion were minimal. This is because the law in question did not deprive the Hutterites of a meaningful choice concerning the religious practises at issue.  Instead, all the law did was “impose a cost” on their choice. In a rather shocking passage, the majority then cavalierly asserted that the Hutterites could simply hire people to drive them to doctor’s appointments or contract with commercial trucking firms to transport their supplies and produce.  After all, what was at issue was “not a right, but a privilege”.

In one of two separate dissents, Justice Abella rightly took the majority to task for failing to give adequate respect to the religious interests involved. Abella J rightly chided the majority for failing to adequately balance the competing interests. Her main focus was on the harm to the Hutterite community. She noted that the photo requirement deprived the Wilson Colony of any meaningful choice because it forced them into a position of either giving up their beliefs regarding the Second Commandment or give up the self-sufficiency of the community. In effect, the majority’s solution (“hire drivers”) forced them to abandon their independence. There was no choice: they either violate the Second Commandment and get photos, or violate their beliefs about community independence and hire drivers. Of equal significance was Abella J’s observation that the majority was essentially adopting a hierarchy of law when it described the issuance of driver’s licences as a “privilege”. Abella J rightly noted that Section 1 of the Charter knows no difference between laws that are compulsory and those that merely grant privileges. Thus, she correctly dismissed the suggestion that the government’s granting of a privilege (whatever that is) is somehow subject to some lesser form of scrutiny.

Justice Deschamps in Bruker v Marcovitz, 2007 SCC 54, [2007] 3 SCR 607

Brucker involved a claim for damages by a wife against her husband for his failure to grant her a religious divorce as stipulated in the civil divorce settlement agreement. The Supreme Court dismissed the husband’s religion claim on the grounds that he was being insincere, and that performing the religious act in question would impose only a non-trivial burden upon him.

Justice Deschamps’ dissent begins with the very basic observation that Canadian courts should not be in the business of determining whether religious obligations are valid or not. In this case, Mrs. Bruker was not seeking compensation for an inability to remarry under the civil law; on the contrary, she wanted to be paid for not being able to get a religious marriage. How could a civil court possibly assess damages for not being able to obtain the benefits of a religious rite? Closely related to this point is Deschamps J’s observation that a contract to perform a religious right is no contract at all. This is because a contract in Québec requires that it concern the performance of a “juridical act”, which is effectively something the civil courts can supervise. A religious divorce cannot be a juridical act since the granting of it requires the cooperation of religious authorities over whom the courts have no power.

Justice Deschamps clearly has the better argument, and one that is more consistent with the then-existing precedent. Under any other circumstances, it is hard to imagine a Canadian court requiring a person to take Holy Communion or even say the Lord’s Prayer against his will. After all, in Amselem, the court would not even require the claimant to honour a real estate contract. Yet, here, the court seemed oddly content to penalise a man for not participating in a religious divorce. In order to reach this result, the majority took upon itself to make a judicial determination of what Judaism required in the process of getting a divorce. Justice Deschamps was on firm ground in warning that the courts should stay far away from this type of entanglement.

Justices Côté and Brown in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293

The TWU case may be the most unfortunate decision ever rendered by the Supreme Court. Couched in the language of diversity, the various opinions making up the majority reek of intolerance. It is clear from the outset that seven of the justices have no time for those who hold to the traditional view of marriage, and were willing to constrict the public square in such a way as to evict those who refuse to conform to current notions of equality. As in Bruker, the majority took upon itself to determine the appropriate content of a religious belief or practice.

The dissent by Justices Coté and Brown is an eloquent statement of what true diversity in a multicultural and multi-religious state entails. It reminds us of that real tolerance lies in ensuring that everyone has access to the public square — even those who hold opinions others might find offensive. Brown and Coté JJ correctly point out that a secular state is not one which enforces irreligion, but rather, which permits both the believer and the areligious to go about their business without hindrance or favour from the state. Thus, neither courts nor administrative agencies ought to be concerned with the “public perception” of what freedom of religion entails. On the contrary, the role of courts in these cases is “not to produce social consensus, but to protect the democratic commitment to live together in peace”. The fact that some people are offended by the TWU community’s beliefs should be of no concern to either the Law Society or the courts. The role of government is not to produce social consensus, but to protect the democratic commitment to live together in peace, even with people who have the temerity to hold opinions which we find reprehensible. Consequently, the result in TWU is to drive those who hold unpopular opinions from the public square.

Another significant aspect of the dissent is the criticism of Doré/Loyola framework. While the dissent notes that TWU was not a proper vehicle for reconsidering the Doré, it nonetheless criticised the majority for the deference it showed to the Law Society. In the view of the majority, an administrative decision-maker need only show that its decision “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate”.  This effectively means that Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute. Or, as Côté and Brown JJ noted, “[w]hen push comes to shove, statutory objectives — including, presumably, unconstitutional statutory objectives — trump the [Charter] right”.

Similarly, the dissent rejected the idea that “Charter values” are deserving of independent protection. More importantly, the dissent rightly rejected the idea that Charter values could be used to trump a specific Charter right. The obvious reason for this is that “values” are highly contested, so that allowing judges to decided cases on “shared” or “fundamental” values is an utterly specious exercise. As the dissenters write, “[i]t is therefore not open to the state to impose values that it deems to be ‘shared’ upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values.” One hopes that a future Supreme Court will reconsider and abandon the Doré framework in its entirety, and reverse this intolerant decision.

Day One: Dwight Newman

Three dissents of principle

Professor of Law, University of Saskatchewan

In considering some dissents of note, it is important to consider what factors make a dissent stand out. Amongst these are its intellectual coherence, its adherence to basic principle, and its tendency to stand up to a majority opinion with some surface allures. In some cases, such dissents of principle end up shaping the law in future, and that is the case in varying ways with all three of the dissents I will discuss here: the dissent of Beetz J. in the Anti-Inflation Act Reference, [1976] 2 SCR 373, the dissent of La Forest J. in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 SCR 3, and the dissent of LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

Beetz J. in the Anti-Inflation Act Reference

Justice Beetz, though not always attracting as much attention today, was an intellectual giant of his era. His dissenting opinion in the 1976 Anti-Inflation Act Reference, in which he stood up for fundamental principles of federalism, is a landmark judgment. In the case, Beetz J. wrote against the majority judgments upholding relatively popular legislation designed to combat severe inflation, including the lead judgment of Laskin C.J.C. supported by the future chief justice Dickson J.

In doing so, Beetz J. had to articulate tests for the so-called “peace, order, and good government” (POGG) power. While the majority mistakenly stated the POGG test too broadly and in ways that would harm Canadian federalism had they come to be applied in other cases, the tests articulated by Beetz J. could inform future jurisprudence, notably shaping the approaches of both the majority and the dissent in the 1988 decision in R. v. Crown Zellerbach Ltd., [1988] 1 S.C.R. 401

On the use of the national concern branch of POGG, Beetz J. actually obtained a majority even in the Anti-Inflation Act Reference itself, as Ritchie J.’s opinion signed on with Beetz J. on this issue. The judgment of Laskin C.J.C. had a peculiar ambiguity to it, not drawing clear distinctions between “national dimensions” and a “national emergency”, and Beetz J.’s dissent thus offered an appealing intellectual rigour by comparison to an approach that would have failed to offer meaningful constraints on federal power. Indeed, Beetz J. presciently warned against the dangers of the federal government inventing new powers by developing creative names for matters it sought to claim under the POGG power.

On the emergency branch, Beetz J. was ready to insist upon the need for transparency in any invocation of emergency powers, along with the other elements needed for the use of the power, including genuine temporariness.  Writing of the mixed body of evidence put forth in support of the federal anti-inflation legislation allegedly being focused on an emergency, Beetz J. showed his readiness to describe matters frankly: “I remain unimpressed” (p. 466). His dissent in the case continues to stand as a tour de force in resisting federal overreach.

La Forest J. in the Provincial Court Judges Reference

The dissent of La Forest J. in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) (Provincial Court Judges Reference), saw La Forest J. standing alone against a Court that claimed to find unwritten constitutional principles governing judicial salaries. The forthrightness of the judgment is stark, as La Forest J. wrote that “the approach adopted by the Chief Justice, in my view, misapprehends the nature of the Constitution Act, 1867” (para. 320) and he suggested that the approach adopted caused the very legitimacy of the Court to be “imperiled” (para. 316). Indeed, he saw the case as being about “the nature of judicial power” (para. 300) in so far as the rest of the Court dreamt up arguments not proffered by the parties to find unwritten principles in the preamble of the Constitution Act, 1867.

In doing so, the majority set the stage for the kind of reasoning they would end up using in the Reference re Secession of Quebec, [1998] 2 SCR 217 shortly thereafter. But it was La Forest J.’s resistance to judicially created principles that would later win out, as the Court had to take  steps in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473 to fend off a surge in litigation grounded in alleged unwritten principles. The majority managed to use unwritten principles on judicial salaries and on secession but came to realize that such an approach was unmanageable for the judiciary as an institution. In Imperial Tobacco, it also indicated its arguably newfound respect for “the delimitation of […] rights chosen by our constitutional framers” (para. 65). While unwritten constitutional principles were convenient in a particular moment, the principled position is to seek to focus on the written text, and that was what La Forest J. defended. 

There has been over the years much talk that La Forest J.’s  resignation from the Court—essentially simultaneous with the release of the judgment in being announced weeks before the release and taking effect weeks after—was a mark of his profound disagreement with the decision, its methodology, and its implications for the upcoming cases. His dissent lives on as a defence of the rule of law.

LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony

There are many important Charter dissents, and the dissent of LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony might not be a common choice.  In some ways, the dissent of Abella J. in the same case has attracted more attention and defends some of the same positions as those within the dissent of LeBel J. But it is LeBel J.’s dissent that has a certain starkness and that marks more profoundly a certain commonsensical resistance to the majority’s convenience-oriented rejection of a religious freedom claim.

The facts concerned the religious freedom claim of a small group of 250 Hutterite farmers from some particular colonies in rural Alberta whose understanding of Scriptural principles against graven images took a particularly strict form: they took the view that they could not have their photographs on their driver licences. The province of Alberta had implemented a universal photo requirement to create a universal facial recognition database and removed an exemption previously granted to these 250 Hutterite farmers that would exclude them from the database, along with the 700,000 Albertans who did not have driver licences at all.   

While the majority opinion of McLachlin C.J.C. (erroneously) accepted the creation of the database itself as the government objective for purposes of analyzing any infringement and McLachlin C.J.C went so far as to suggest that the farmers in question could simply arrange alternative transportation, LeBel J. eviscerated the majority logic in a few lines. Writing against the judgment of McLachlin C.J.C. —who grew up in rural Alberta—it fell to LeBel J. to point out the importance of a driver’s licence in rural Alberta and to suggest that an appropriate constitutional balance was not obtained “by belittling the impact of the measures on the beliefs and religious practices of the Hutterites and by asking them to rely on taxi drivers and truck rental services to operate their farms and to preserve their way of life” (para. 201). 

The defence of collective aspects of religious freedom resonating through various parts of LeBel J.’s dissent (and the subject of a beautiful passage about communities of faith at para. 182), also found in Abella J.’s dissent, won out in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613.  There, McLachlin C.J.C. and Moldaver J., wth Rothstein J. also signing on, decided to state that LeBel J. had not actually been in dissent on the significance of religious communities and the collective dimensions of religious freedom (para. 93). Sadly, such reassurances may have come too late, as many understood the majority opinion in Hutterite Brethren as implicitly about worries about future cases involving Muslims, and the majority’s tolerance of government restrictions probably set a tone for the years to come. But, in principle, LeBel J.’s dissent came to be the law on these aspects.

Another, fascinating dimension of LeBel J.’s dissent also deserves more attention than it has received thus far. In his dissent, he also fosters new thought on the Oakes test for rights limitations, recognizing explicitly some problems in how it had come to be applied over the years. This thought was also prescient, and further rethinking of the Oakes test has emerged as an arena for ongoing discussion. Like other great dissents of principle, LeBel J.’s dissent in Hutterian Brethren sparkles with intellectual energy and stands on fundamental points of principle in ways that make it endure not as a mere minority report but as a light for the future.

On the Origin of Rights

Are religious justifications for rights and equality inadmissible in Canadian politics?

Why have we got the fundamental rights we think we have? This is a somewhat embarrassing question for secular liberals, such as yours truly. We don’t have a very satisfactory answer to it. Our religious fellow-citizens, by contrast, have one, which is that rights come from God, in whose image (at least the Judeo-Christian tradition) human beings have been created. As it turns out, however, not everyone is okay with this answer being publicly aired, at least by a politician. This is puzzling to me, and worth a response.

The minor Twitter dustup of the week so far was triggered by the Conservative Party’s leader, Andrew Scheer, who wanted us all to know that he “believe[s] that we are all children of God and there is equal and infinite value in all of us”, from which it follows that no one is superior or inferior to anyone else on the basis of “race, religion, gender, or sexual orientation”. Pretty anodyne stuff, I should have thought. But not according to, well, a number of people ― one can never tell how many with these Twitter dustups. Emmett Macfarlane demanded that Mr. Scheer “[k]eep his imaginary shit out of [his] public policy”, eventually adding that”[i]t’s actually highly disagreeable to imply … that the equality of people is rooted in our status as ‘children of God'”. And I’ve seen other comments along these lines too. Perhaps, as Jonathan Kay suggested, “Canada has run out of real things to fight about”. But I take it that to Professor Macfarlane, and to others who think like him, this is a serious thing.


So here are some hopefully serious thoughts on this, from the perspective of one who does not share Mr. Scheer’s belief that human beings are children of God. To begin with, it’s necessary to recall that something like Mr. Scheer’s view was, historically, the foundation of the argument for the normative equality of human beings and the existence of fundamental rights inviolable by a political community. It was John Locke’s argument and Thomas Jefferson’s, for instance. The Declaration of Independence proclaimed, as “self-evident” “truths”, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Lord Acton would later write that “the equal claim of every man to be unhindered by man in the fulfillment of duty to God … is the secret essence of the Rights of Man”.

A Twitter interlocutor told me that this was of no import in Canada. Stuff and nonsense. Canada is very much an heir to the liberal tradition of which both Locke and Jefferson were among the founders, and Acton one of the great exponents. (The Canadian Charter of Rights and Freedoms, in particular, embodies this tradition ― and, in permitting individual rights to be set up as limits on public power, does so in a manner that is more Jeffersonian than the defenders of Canadian exceptionalism care to acknowledge.) Others have pointed out that Locke’s egalitarianism did not extend to the Aboriginal peoples of the New World. They might have added that Jefferson was, notoriously, a slave-owner who fathered children with an enslaved woman. Acton almost as notoriously, supported the slave-owners in the American Civil War, in a shockingly misguided and embarrassing defence of federalism. But I don’t think this matters here. Locke, Jefferson, and Acton fell short of their principles ― as human beings often do ― and this is to their individual discredit, but not to that of the principles which, had they followed these principles fully, would have prevented them from discrediting themselves.

More modern, secular statements about the origin of rights, meanwhile, are full of elisions and circumlocution. Article 1 of the Universal Declaration of Human Rights provides that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” This is, up to a point, an echo of Jefferson’s words, but notice what’s missing here: any indication of why human beings are born free and equal, or how we know this, or who endowed them with reason and conscience. Section 1 of the Canadian Bill of Rights “recognized and declared that in Canada there have existed and shall continue to exist … [certain] human rights and fundamental freedoms”. This (like similar, if more laconic, language in section 2 of the New Zealand Bill of Rights Act 1990) is a recognition of the pre-political nature of rights, which are not created by whatever positive law implements them. But again, it is not clear how these pre-political rights came into being. The preamble to the Canadian Bill of Rights declares that “the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions”. The preamble to the Canadian Charter of Rights and Freedoms also refers to “principles that recognize the supremacy of God and the rule of law”. But the connection between these principles and the rights these instruments protect is left studiously undefined.

I am not saying that this is a bad thing. It’s probably more important to agree on our having rights than on the causes of our having rights. I share A.V. Dicey’s belief that it is more important to provide legal remedies for the violations of rights than to declare grand principles of rights-protection. Jefferson could consider the divine origin of rights self-evident, but in contemporary society neither his view nor any alternative can make such claims, and it is fortunate that we have gotten on with the practical business of providing legal remedies against the breaches of at least some important rights instead of debating the precise metaphysical reasons why we should do so.

It would be a long debate. We secularists cannot claim to know, collectively, where rights or equality come from. Some of us, individually, have hypotheses of course. There is Kant’s work on human dignity of course (arguably as mysterious as many a religious dogma). Jeremy Waldron (although he is no secularist, actually, as will soon be apparent), sets out a (multifaceted) justification for equality in his book One Another’s Equals. Another line of thought that I personally find appealing is based (non-religious) natural law, developed along the lines Randy Barnett sketches out. In a nutshell, this argument holds that, given certain facts about human nature ― perhaps especially our general tendency, all too well attested by history, to disregard the interests of those whom we do not consider to be (at least) our equals ― if we want to live peacefully and prosperously with one another, we really ought to consider each other as equals and as holders of certain rights. Intriguingly, the preamble of the Universal Declaration actually makes an argument of more or less this sort: “[w]hereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. In other words, if we don’t commit to ideas like equality and some other fundamental rights, we can be pretty sure that things will turn out badly.

But none of that is, to use Jefferson’s words, self-evident. One can plausibly be a Kantian, a secular Waldronian, a latter-day natural lawyer, but one cannot plausibly insist that these explanations, or any one of them, are the only admissible ones. Nor can one specifically exclude religious explanations for equality or fundamental rights from the realm of admissibility. (That’s not to say one has to find them persuasive.) Professor Waldron himself writes that it “seem[s] obvious to [him]” that

an adequate conception of human dignity and of the equality that is predicated on that dignity is rooted in an understanding of the relation of the human person to God or in aspects of human nature that matter to God or matter for our relation to God[;] that human worth and human dignity are going to have to be rooted in something like a theological anthropology, a religiously loaded account of human nature. (177)

Professor Waldron acknowledges that these things are not obvious ― to put it mildly ― to many others; that “[m]any philosophers” ― or political scientists, like Professor Macfarlane, or others ― “are inclined to dismiss religious accounts of human equality as superstitious nonsense”. (178) He specifically addresses the concerns of those who would rather that religious arguments on such issues not be offered to the public. As read him, Professor Waldron speaks mostly to the position of the philosopher (not necessarily a professional one, but perhaps simply a philosophically-minded citizen), not that of the aspiring office-holder. But I think that his conclusion that “everybody calling it as they see it and giving the fullest and most honest account they can is superior to … embarrassed self-censorship about a matter this important” (213) is applicable to people in Mr. Scheer’s position, as well as in Professor Waldron’s. This is partly a matter of honesty both personal and intellectual, and partly also a consequence of the fact that, as noted above, for politics and law, our agreement on the existence of rights and the value of equality matters rather more than the reasons we might have for subscribing to this agreement. If some people want to sign on for religious reasons, we should welcome them and be glad of their company even if we do not find their reasons convincing.


So, despite not being religious, I would not purge the religious accounts of equality and fundamental rights from the realm of intellectually respectable ideas or from the public square. Indeed, I will end on a on wistful and worried note. Professor Waldron suggests that “perhaps some of the foundations” of our morality “have [a] nonnegotiable character;” (188) they must be obeyed and are not subject to revision in light of our other commitments. These foundations “may include the basic equality of all human beings, and I wonder whether a religious grounding might not be a good way of characterizing this particularly strenuous form of objective resilience”. (188) Perhaps the same might be said about liberty, or its more specific instantiations, such as the freedom of conscience and the freedom of speech.

And so, like Professor Waldron, I wonder whether a world, call it Jefferson’s world if you like, in which there was certainty about the origin of rights ― and about their divine origin, and hence transcendant importance, too ― was not one in which rights could be more secure than in our world of pluralist doubt. Against that, we must count the reality of, on the whole, much greater respect for rights today than in Jefferson’s own time and in his own life. Still, it is difficult not to worry that our lack of confidence about the origin of rights leaves them vulnerable to the rhetoric of those who see rights (and other legal and constitutional limitations) as dispensable luxuries or outright obstacles in their pursuit of plans for remodelling human beings, society, and the world in the name of this or that ideal.

Trinity Western, Dissected

The video of a discussion of the Supreme Court’s decision, held at the Centre for Constitutional Studies

Last week, I had the privilege of taking part in a discussion of the Supreme Court’s recent Trinity Western decisions organized by the Centre for Constitutional Studies. My presentation dealt with the Court’s majority’s embrace of the use of the Canadian Charter of Rights and Freedoms, anti-discrimination legislation, and purported “Charter values” to impose on a private institution obligations to which no law subjects it. I argued that, although the majority judgment in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, refers to “shared values”, in a pluralistic society it is only laws that we share ― until we amend them through the appropriate process ― even as we strongly disagree about values.

For their part, my co-panellists, Howard Kislowicz and Jennifer Rason, spoke respectively about the conformity, or lack thereof, of Trinity Western to Supreme Court precedent in the realm of freedom of religion, and about the decision-making processes followed by the law societies, and their implication for judicial review of their decisions. While they were not as harshly critical of the Supreme Court as I was, I think it is fair to say that, in their own ways, they too were underwhelmed by the decisions.

Here is a recording of the event. My remarks start at about 9:40, but I strongly recommend those of Professors Kislowicz and Raso, as well as the Q&A.

Thanks to the Centre’s Patricia Paradis and her staff for putting this event together! I very much enjoyed it, and hope to be back sometime.

What’s Left of Freedom?

In the Trinity Western cases, the Supreme Court eviscerates religious liberty in Canada

In my last post, I discussed the administrative and constitutional law issues relating to judicial review of the decisions of the law societies of British Columbia and Ontario to deny accreditation to the law school set up by the Trinity Western University, which the Supreme Court upheld in in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.  Here, I turn to the religious freedom aspect of the decisions. (Once again, the British Columbia decision is the one that sets out the judges’ reasoning in full, and I will refer to it below.) As indicated in the last post, in my view the Supreme Court’s decisions are disastrous, because they more or less nullify the constitutional protection for religious freedom enshrined in the Canadian Charter of Rights and Freedoms.

Trinity Western requires its students (as well as faculty) to sign and abide by a “Covenant” that proscribes, among other things, sex outside heterosexual marriage. This is widely seen as discrimination against gay and lesbian (potential) students, and was the reason for the law societies’ decisions not to accredit Trinity Western’s law school. Trinity Western argued that these decisions infringed its and its students’ freedom of religion, and that the infringement could not be justified under the Charter.

As on the issues covered in the last post, the Court is split. The majority judgment signed by Justices Abella, Moldaver, Karakatsanis, Wagner, and Gascon holds that there is indeed a prima facie infringement of religious liberty, but that it is not especially serious and is easily outweighed by the need to prevent harm to students. The Chief Justice, concurring, also finds that there is an infringement of religious freedom, and indeed a rather more serious than the majority lets on, but one that is nevertheless outweighed by the law societies’ desire to avoid condoning discrimination. By contrast, Justice Rowe, also concurring, thinks that religious freedom is not at stake at all. Justices Brown and Côté dissent, finding an infringement of religious freedom that is not justified.

* * *

The majority is of the view that constitutional protection extends to “the socially embedded nature of religious belief” and to “[t]he ability of religious adherents to come together and create cohesive communities of belief and practice”. [64] Trinity Western “is a private religious institution created to support the collective religious practices of its members”, whose rights were “limited” [61] when it was denied accreditation, because their ability to put into practice a “sincere[] belie[f] that studying in a community defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development” was thereby undermined. [70] The majority adds that, while the freedoms of expression and association, as well as equality rights, were also raised in the cases, “the religious freedom claim is sufficient to account for [these] rights of [Trinity Western]’s community members in the analysis.” [77]

The Chief Justice agrees that “the freedom of religion of members of the Trinity Western community” [120] has been infringed. To be sure, as individuals, they can go on holding their beliefs regardless of whether the law societies accredit the Trinity Western law school. However, they would be “prevent[ed] from carrying out a practice flowing from [their] belief about the environment in which [Trinity Western] would offer a legal education”. [125] The Chief Justice adds that the freedoms of expression and association must be included within “the ambit of the guarantee of freedom of religion”. [122]

Justice Rowe, by contrast, denies that anyone’s freedom of religion is being infringed. He starts from the premise “that religious freedom is based on the exercise of free will”, because it “involves a profoundly personal commitment”. [212] For Justice Rowe, it follows from this that, although religion can have a “communal aspect”, it is individuals, and not institutions ― such as Trinity Western ―, who can invoke the right to religious freedom. [219] “[M]embers of the evangelical Christian community” [219] who attend Trinity Western can assert religious rights, but Justice Rowe is skeptical that they “sincerely believe in the importance of studying in an environment where all students abide by the Covenant”. [235] They prefer to do so, but do they really think they have to?Even assuming that this is so, however, Trinity Western’s evangelical students are not entitled to constitutional protection for their belief, which “constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe”. [239] They cannot, in the name of religious freedom, impose their views on those who do not share them. Since the legislation that sets up Trinity Western requires it to admit non-members of the evangelical community, these non-members are entitled to have their freedom protected too. As for “alleged infringements to … expressive and associate [sic] freedom rights … and … equality rights”, the members of the Trinity Western community “have not discharged their burden” of establishing them. [252]

The dissent sees things very differently. In the opinion of Justices Côté and Brown, the law societies’ denial of accreditation to Trinity Western “undermines the core character of a lawful religious institution and disrupts the vitality of the [Trinity Western] community”. [324] This community has the right to set its own rules for its self-governance, and the law societies are not entitled to dictate how it should do so as a condition of providing it with a benefit. Such dictation

contravened the state’s duty of religious neutrality: [it] represented an expression by the state of religious preference which promotes the participation of non-believers, or believers of a certain kind, to the exclusion of the community of believers found at [Trinity Western]. [324]

The dissenters are exactly right. The majority and the Chief Justice are also correct in recognizing an infringement of the Charter‘s guarantee of religious freedom, though as we shall see, the majority’s recognition, in particular, is well-nigh meaningless, and it is too bad that neither the majority nor the Chief Justice articulate the issue in terms of state neutrality. The key to the Charter aspect of the case is that Trinity Western has been denied something that there is no doubt it would have been granted but for the religious belief and practice which it embodies. While some, including both critics and supporters of the Supreme Court’s decision, have suggested that the case should really have been about freedom of association, I think it makes sense to frame as being about the state neutrality aspect of religious liberty. (That said, freedom of association would also have been a plausible approach ― at least if one ignores the Supreme Court’s refashioning of this provision into one that only benefits labour unions).

Justice Rowe, in my view, is quite mistaken. For one thing, I don’t understand how he, as an appellate judge, can make findings, or even speculate, about the sincerity of individual’s religious beliefs. For another ― and this, as we’ll presently see, is a problem not just for him, but for the majority too ― the suggestion that a court can distinguish between beliefs that are well and truly obligatory and those that are mere “preferences” goes against the approach adopted by the majority of the Supreme Court in Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551, which rejects testing the “validity” of religious beliefs, or asking whether a given practice is regarded as truly mandatory or supererogatory. Most fundamentally, Justice Rowe is wrong to claim that Trinity Western is trying to impose its beliefs on anyone. It demands forbearance from certain actions ― without inquiring into the reasons for this forbearance, in the same way as the state normally demands compliance with laws but doesn’t require citizens to subscribe to the principles behind them. Such demands are indeed quite antithetical to the freedom of conscience ― and one can only hope that Justice Rowe will remember this if or when the Law Society of Ontario’s Statement of Principles policy comes to his court for review ― but this is not what is going on here.

* * *

For the majority, denying Trinity Western accreditation was the only way for the Law Societies to further their statutory mandate (as they understood it), and the denial was “proportionate” to that mandate. It “did not limit religious freedom to a significant extent”, [85] and “does not prohibit any evangelical Christians from adhering to the Covenant or associating with those who do”. [86] Trinity Western itself can still receive accreditation by removing the “Covenant”, or making compliance with it voluntary, and “a mandatory covenant is … not absolutely required for the religious practice at issue”. [87] As for the students who wish to attend it, they prefer to go to a law school governed by the mandatory “Covenant”, but do not have to.

Meanwhile, denying Trinity Western accreditation contributed to “maintaining equal access to and diversity in the legal profession”. [93] Even though accrediting Trinity Western wouldn’t restrict LGBTQ students’ options in comparison with what they currently are, it would leave them with fewer options than their peers which “undermines true” or “substantive equality”. [95] The denial of accreditation also serves to protect any LGBTQ students who were to venture to Trinity Western from “the risk of significant harm” to their dignity, [96] and prevents Trinity Western from “impos[ing]” [102] its religious beliefs on them (and others). The majority concludes that this is just one of the cases where “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.” [100]

The Chief Justice agrees that the denial of accreditation “was minimally impairing”, [127] but she takes the infringement of Trinity Western’s rights more seriously than the majority. Interference with a “lengthy and passionately held tradition” “of religious schools … established to allow people to study at institutions that reflect their faith and their practices” [130] is no trivial matter. Besides, court cannot assess the significance of religious beliefs and practices, or conclude that they are of minor significance because some believers “may be prepared to give [them] up”. [132] Finally, the Chief Justice rejects the argument that Trinity Western is imposing its beliefs on others:

Students who do not agree with the religious practices do not need to attend these schools. But if they want to attend, for whatever reason, and agree to the practices required of students, it is difficult to speak of compulsion. [133]

On the other side of the balancing exercise, the Chief Justice is skeptical that denying Trinity Western accreditation will do much for LGBTQ students, few of whom would ever consider attending it. However, she gives more weight to “the imperative of refusing to condone discrimination against LGBTQ people, pursuant to the [law societies’] statutory obligation to protect the public interest”. [137] The Chief Justice finds that “[d]espite the forceful claims made by” Trinity Western, she “cannot conclude that” denying it accreditation “was unreasonable”. [148]

The dissent, by contrast, sees no good justification for the denial of accreditation to Trinity Western ― even on the assumption (which, as explained in the previous post, the dissent denies) that the law societies have a free-standing mandate to advance “the public interest”. To be sure, Trinity Western’s “Covenant” is exclusionary; but  this exclusion “is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society”. [327] Canada has traditionally accommodated religious difference, instead of insisting, as the majority does, that it must sometimes be curtailed in the pursuit of statutory objectives. Moreover, “it is the state and state actors — not private institutions like [Trinity Western] — which are constitutionally bound to accommodate difference in order to foster pluralism”. [330] The state is supposed to be secular ― and that means

pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view. [332]

Besides,  “the Legislative Assembly of British Columbia has already determined that the public interest is served by accommodating religious communities” [335] when it exempted Trinity Western from the application of the provincial anti-discrimination legislation.

The dissent also rejects the Chief Justice’s position that accrediting Trinity Western would amount to condoning its discriminatory beliefs:

State recognition of the rights of a private actor does not amount to an endorsement of that actor’s beliefs … Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors. [338]

The state is not entitled to impose its values on those who are not subject to constitutional obligations. While it may not favour particular beliefs, neither may it deny recognition to persons or institutions who hold beliefs that are at odds with its own commitments.

On this, again, the dissenters are exactly right. The majority and the Chief Justice are allowing the law societies to circumvent the decisions of the framers of the Charter and the British Columbia legislature to permit illiberal and discriminatory private actors to retain and act on their religiously motivated beliefs. Yet religious freedom demands no less. When the state uses its regulatory (or, in other cases, its fiscal) power to deny benefits to persons and institutions whose only “fault” is that they hold religious beliefs of which the state does not approve, it not only fails to discharge its duty of neutrality, but actively seeks to eliminate religious diversity or, at best, to push dissentient religious views into the closet. (I use this phrase advisedly.) Moreover, the Chief Justice’s logic ― that the state is entitled to deny a license, benefit, or privilege to persons or entities whose views it ought not to condone ― extends well beyond the realm of religious freedom. Can racist parents be prevented from sending their children to public schools? Holocaust deniers from getting driver’s licenses? Can flat-Earthers be denied passports, or EI payments? In fine, can any interaction a citizen might have with the state be conditioned on that citizen’s not holding proscribed beliefs?

The majority, of course, is no more respectful of religious freedom than the Chief Justice ― and probably less so. Like Justice Rowe, it would, contrary to Amselem, set up secular courts as ecclesiastical tribunals responsible for determining what is and what is not mandatory as a matter of religious dogma. Like Justice Rowe, it confuses rules of conduct and reasons for complying with them and denies the agency of persons who voluntarily choose to submit to rules whose raison d’être they might disapprove of. As for its understanding of “substantive” equality, it requires denying options to all so as not to admit of any disparity, even one that literally leaves “enough and as good” ― and indeed, more than enough and better ― options to those ostensibly excluded; in other words, a levelling down.

* * *

I’m not sure how much is left of the constitutional guarantee of religious liberty after the Trinity Western decisions. Presumably, purely private devotion still cannot be forbidden or compelled ― to that extent, it is fortunate that the Chief Justice’s approach, which would have opened even private religious views to scrutiny the moment a citizen starts interacting with the state, has not prevailed. But any relationships between religious persons or entities with others ― even entirely consensual relationships ― are now open to regulation in which the religiously motivated actions can be regulated or prohibited as impositions of belief, or subjected to the imposition of the state’s values, whether or not there is any legislative basis for such imposition in the circumstances. Purely symbolic harms are deemed to provide sufficient justification for regulation, and multiculturalism is made to serve as an excuse for silencing and assimilating non-conformists. It is telling that the arguments that purportedly justify the denial of accreditation to Trinity Western are not meaningfully different from that those that supposedly support bans on Muslim face veils, which are also said to be necessary to prevent the imposition of retrograde, discriminatory views on those who do not freely embrace them.

Almost five years ago, I commented on an article by Douglas Laycock called “Religious Liberty and the Culture Wars,” which decried the growing hostility to religious freedom among large sections of the political left. Professor Laycock connected this hostility to the religious right’s own attempts to suppress the liberties of the people it regarded as morally misguided. But, contrary to the claims of the Supreme Court’s majority and Justice Rowe, no such thing happened at Trinity Western. However distasteful its views ― and I do find them distasteful, not just the homophobia but the illiberalism more broadly ― Trinity Western wasn’t trying to impose them on unwilling outsiders. Professor Laycock was hopeful that “[w]e could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides”. (41) The Trinity Western cases show this possibility is no longer a realistic one in Canada, for the foreseeable future. The winners in the culture war have chosen not to take prisoners, and to accept nothing short of an unconditional surrender. The Supreme Court holds that they are entitled to do so.

A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must not take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”.

Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. As Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter‘s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.