Law Times

PAGE 4 NEWS April 26, 2010 • lAw Times Experts debate top court's approach to religion Judges need to engage with beliefs to avoid deferring to government: professor BY MICHAEL McKIERNAN Law Times derstand religious beliefs if it's going to avoid deferring to governments in freedom of religion cases, a constitutional law expert says. Benjamin Berger, an associ- T ate professor at the University of Victoria Faculty of Law, said the 2009 decision in Al- berta v. Hutterian Brethren of Wilson Colony signaled a shift in the way the court applies the Oakes test for determining whether a s. 1 breach of the Charter of Rights and Free- doms has occurred. "If this shift is going to be anything other than a realign- ment of Oakes to be more deferential to government in matters of religion, it's going to have to turn on judges engaging with religious beliefs in a way that I'm not entirely convinced they're willing or prepared to," he said while speaking at the annual Constitutional Cases conference organized by Os- goode Hall Law School in To- ronto on April 16. In the Alberta case, a group of Hutterites challenged the provincial government's new driver's licence regulations. Th e rules removed a long-standing photograph exemption for Hutterites, who believe the pic- tures on driver's licences violate the Second Commandment. Th e courts in Alberta found he Supreme Court of Canada must make a better attempt to un- the regulation violated s. 1 of the Charter, but the Supreme Court disagreed. In the ruling, Chief Justice Beverley McLachlin dismissed the doctrine of reasonable accom- modation, which had surfaced in past decisions on religious free- doms, as a suitable substitute for the Oakes test's minimal-impair- ment requirement in cases con- cerning general rules. And the response that Hutterian Brethren can just hire a cab to get anywhere they need could be seen as a little cavalier. Berger said the decision means the courts will deter- mine more cases at the fi nal stage of the Oakes test, a cost- benefi t analysis that weighs the pros and cons of a piece of leg- islation versus the restriction on freedom of religion. "Focusing on salutary ben- efi ts versus deleterious eff ects seems to demand that courts make an attempt to appreci- ate and evaluate and gauge the internal meaning of certain practices. Th is cultural gap you have to bridge becomes un- avoidable." Richard Moon, a professor at the University of Windsor Faculty of Law, said that's ex- actly the type of situation the court wants to avoid. "Th e only way you could do this is to fi nd some kind of prag- matic trade-off . Pragmatic reso- lutions are not the stuff of what adjudication is meant to be." Moon added the special signifi cance Canadians attach to religious beliefs and their general desire to minimize gov- ernment interference in that sphere also make the court re- luctant to make judgments on the value of certain practices. "Th e problem with under- standing religious beliefs as a private matter is that they in- volve truth claims, which of- ten have public implications and say something about the kind of society we should try to create. Th is attempt to separate religion from politics can't be maintained in a con- sistent manner." According to Moon, the lack of options for accommo- dation in the realigned Oakes test will result in fewer laws be- ing struck down for breaching freedom of religion. "It gives the appearance of a rigorous justifi cation process but it seems to me that the re- ality is that a state law may only be struck down or limited if it does not pursue a legitimate purpose of any kind or if it fails the minimal-impairment test. It strikes me that there is no real duty on the state to compromise its policy to create space for religious practice." Berger, however, says he has the deleterious eff ects of allow- ing the procedure outweighed the value of the legislation. "His dissent is refreshing in The Hutterian case shows evi- dence of a tougher approach to multiculturalism, says Nathalie Des Rosiers. seen evidence — although it was in a dissenting judgment in another case from 2009 — that Supreme Court judges will at- tempt to understand the impor- tance of a religious belief in the fi nal stage of the Oakes test. In A.C. v. Manitoba (Direc- tor of Child and Family Ser- vices), a devout 14-year-old Jehovah's Witness challenged a provincial statute that directed a judge to make a decision on whether she should receive a blood transfusion because she was under 16. Th e top court ruled the law was constitution- al, but in a dissenting opinion Justice Ian Binnie noted that while people who don't "sub- scribe to the beliefs of Jehovah's Witnesses fi nd it diffi cult to un- derstand their objection to the potentially life-saving eff ects of a blood transfusion," he found how direct it is about the dif- fi culty with protecting free- dom of religion," Berger said. "He makes a real eff ort to un- derstand what this belief about blood transfusions means to the individual." Nathalie Des Rosiers, gen- eral counsel with the Canadian Civil Liberties Association, said the Hutterite decision could be seen as an example of a tougher approach to multiculturalism. "In the media, you get a sense of exasperation at yet an- other demand of accommoda- tion. It's presented as though we have been too accommodat- ing. You see in Hutterian some of this tougher language. Th e majority refers to the fact that freedom of religion does not protect trivial burdens. And the response that Hutterian Brethren can just hire a cab to get anywhere they need could be seen as a little cavalier." Des Rosiers also highlighted what she sees as a troubling deference to security concerns in the decision. In her view, the suggestion that identity fraud could occur if the court al- lowed the exemption trumped all other concerns about reli- gious freedom. "Th is measure was not nec- Evidence in Family Law The first book to provide clarity in this complex area of law This unique resource is structured to follow the evolution of a family law case through trial and appeal. It also examines specialized areas of family law such as Charter litigation and child protection proceedings, looking at how to establish the proper evidentiary framework. 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Robert Charney, general counsel with the Ontario Min- istry of the Attorney General's constitutional law branch, took a more positive approach to the Hutterian case, in which he inter- vened on the province's behalf. Charney referred to a previ- ous Supreme Court decision, Syndicat Northcrest v. Amselem, that also dealt with religious freedoms. In it, the appellant, Moïse Amselem, successfully challenged a condo bylaw that prevented him from building a succah, a temporary hut built for a Jewish holiday, on his bal- cony. While the court set a frame- For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0426 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Niman_Evidence in Family Law (LT 1-3x4).indd 1 www.lawtimesnews.com 4/21/10 8:46:58 AM work for measuring the sincer- ity of religious beliefs, it said it couldn't test their validity. But Charney argued the sincerity test was such that almost any false claimant could easily gain an exemption with far more serious consequences than the aesthetic concerns in Amselem. "For people who want to en- gage in illegal conduct, such as identity theft or driving while suspended, a photo-less ID is a great thing to have," he said. As a result, Charney com- mended the court's decision in the Hutterian case for drawing a distinction between relation- ships among private parties and those involving a legislature and the people it governs. LT Editor- and a team of prestigious practitioners, academics and accountants as contributors Associate Editor: Anita Volikis in- Chief: Harold Niman Melanie Kraft Andrew Freedman Nicholas Bala Daryl Gelgoot, Deborah Zemans Aaron Franks Alfred A. Mamo Joanna E. R. 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