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What's Sincerity Got to Do with It? Freedom of Religion in Canada

Published online by Cambridge University Press:  22 August 2012

Margaret Ogilvie
Margaret Ogilvie
Affiliation:
Chancellor's Professor and Professor of Law, Carleton University, Ottawa Barrister, Ontario and Nova Scotia
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Extract

Recently, the Supreme Court of Canada (SCC) returned to the test of individual sincerity for determining whether there has been an infringement of freedom of religion pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the Charter) in SL c Commission scolaire des Chênes. Sincerity of belief or in practice as necessary for religious expression on the part of a complainant has been accepted from some of the earliest Charter cases as the triggering requirement for a section 2(a) claim, and, in itself, sufficient to establish a claim which a court must then balance against conflicting claims pursuant to section 1 (‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’) or section 15 (equality rights). In SL, the court confirmed that mere sincerity is no longer sufficient and that an objective burden of proof now rests on a claimant to show how a state-sanctioned requirement infringes the fundamental right to freedom of religion before competing claims will be assessed. In SL, the court found that the complainants had failed to show how a religious education course mandated for all students without exception by the Government of Quebec interfered with what they argued was their religious freedom as Roman Catholic parents to pass on their faith to their children. This result has also been interpreted to mean that the state has a right prior to parental rights in the religious formation of their own children, and, on this reading, has been highly controversial. The court's new formulation of a sincerity test may be of interest elsewhere. The earlier formulation in Syndicat Northcrest v Anselem was adopted by the House of Lords in R (Williamson) v Secretary of State for Education and Employment, and the subsequent spread of its use has since been subject to consideration in England.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 14 , Issue 3 , September 2012 , pp. 417 - 425
Copyright
Copyright © Ecclesiastical Law Society 2012

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References

1 RSC 1985, App II No 44.

2 2012 SCC 7.

3 R v Jones [1986] 2 SCR 284 per LaForest J. For an analysis of sincerity in the early cases, see Ogilvie, M, ‘Who do you say that you are? Courts, creeds and Christian identity’, (2000) 3 Journal of the Church Law Association of Canada 140Google Scholar.

4 A simple internet search for the course name, ‘Ethics and religious culture’, will reveal how controversial the outcome is. See also, for example, Kay, B, ‘The state's new place in the souls of the nation’, National Post (22 March 2012)Google Scholar; Farrow, D, ‘Quebec's religious state’, (March 2012) Convivium 17–19Google Scholar.

5 (2005) 241 DLR (4th) 1 (SCC).

6 [2005] 2 AC 246 (HL).

7 A Hambler, ‘Establishing sincerity in religion and belief claims: a question of consistency’, (2011) 13 Ecc LJ 146.

8 Constitution Amendment 1997 (Quebec), S I/98-25, s 93A.

9 An Act to amend various legislative provisions of a confessional nature in the education field, SQ 2005, c 20.

10 Interested readers will find the course at <https://www7.mels.gouv.qc.ca/DC/ECR/index_en.php>, accessed 8 June 2012.

11 See above, n 4.

12 SL at para 29 per Deschamps J.

13 2009 QCCS 3875 (CS); 2010 QCCA 346 and 348 (CA).

14 SL at para 17, relying on R v Big M Drug Mart Ltd. [1985] 1 SCR 295.

15 SL at paras 19–20, relying on Zylberberg v Sudbury Board of Education (1988) 65 OR (2d) 641 (CA) and CCLA v Ontario (1990), 71 OR (2d) 341 (CA).

16 SL at para 21, relying on Big M and CCLA.

17 SL at paras 22–25.

18 Ibid at para 27.

19 Ibid at paras 30–31.

20 Ibid at paras 37–39.

21 Ibid at paras 40–41.

22 Ibid at paras 47–50.

23 Ibid at paras 51–52.

24 Ibid at para 53.

25 Ibid at paras 56–58. Before the SCC handed down its decision, a Quebec Superior Court in a companion case brought by a Roman Catholic high school found the programme to infringe the school's rights to teach the Roman Catholic faith and characterised the government of Quebec as ‘tyrannical’ in the way in which the course was implemented. This case is under appeal. See Loyala High School c Courchesne 2010 QCCS 2631.

26 SL at para 51.

27 M Ogilvie, ‘And then there was one: freedom of religion in Canada: the incredible shrinking concept’, (2008) 10 Ecc LJ 197–204.

28 Anselem at para 39.

29 Ibid at para 50.

30 Ibid at para 53.

31 Ibid.

32 (1985) 18 DLR (4th) 321 (SCC).

33 R v Jones (1986) 31 DLR (4th) 569 (SCC).

34 Anselem at para 61, per Iacobucci J.

35 2006 SCC 6.

36 2009 SCC 37. See also M Ogilvie, ‘The failure of proportionality tests to protect Christian minorities in Western democracies’, (2010) 12 Ecc LJ 208–214.

37 SL at paras 22–23.

38 (1986) 35 DLR (4th) 1 (SCC).

39 SL at para 23.

40 R v Jones (see n 3) is a good example.

41 See Zylberberg and CCLA (both n 15).

42 Ogilvie, ‘And then there was one’.