Dear Sir or Madam,
It has often been said that politics and religion make for poor dinner conversation. If you are eating, we will wait for you to finish. Done? Good.
As we have already demonstrated, statute is often incomplete. For example, s. 2(a) of the Charter reads:
“2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;...1”
Of course, nothing is as easy or simple as it seems with constitutional law, and there have been various calls to interpret these eleven little words. Section 2(a) rights can be somewhat troublesome when considering that accommodating them without any restrictions whatsoever can have some unintended consequences, such as denying others their Charter rights, which sometimes includes their s. 2(a) rights.
In 2005, Bobby Henderson wrote an open letter to the Kansas School Board admonishing their decision to teach "Intelligent Design" alongside the theory of evolution in their classrooms2. Henderson suggested that this would mean that the Board would need to teach more than only their version of "Intelligent Design", including the one that he fabricated for the purpose of the letter, which suggests that the universe was created by a Flying Spaghetti Monster. He also suggested that, in order to teach his theory with full respect to his religion, it must be done in a pirate costume. At first blush, Bobby Henderson seems like a madman. In reality, he is a hero. His letter used humour to make a very important point in the American debate regarding the establishment of religion and its place in public schools.
Since we aren't American, let's fast-forward to 2014 when a B.C. man named Obi Canuel lost his driver's licence for refusing to take a photo without wearing a colander on his head. You see, Canuel considers himself a devout "Pastafarian", which is what adherents of the Flying Spaghetti Monster call themselves. In addition to swashbuckling accessories, they also view anything pasta-related, such as a strainer, to be sacrosanct. The Insurance Company of British Columbia (ICBC) refused to permit him to take the photo with the colander. According to the Vancouver Sun, “ICBC refused to allow an interview... and has shrouded its religious policies in secrecy”3.
But... But... But... What about Section 2(a)?
As you've probably guessed by now, s. 2(a) rights aren't absolute. The best ruling that we've had to sort this out is Syndicat Northcrest v Amselem4. In this case, Orthodox Jews built small dwellings on their apartment balconies as part of their observance of Succot, a Jewish holiday. The owners of the building didn't like it, and sought an injunction.
Now, this case doesn't really deal with the Charter directly, but with the Quebec Charter. The important part of the Supreme Court of Canada's ruling deals with freedom of religion as a whole. It provides a definition for “religion”5 and, more importantly, both a requirement and a test for a sincerely held religious belief6. Amselem held that an individual belief is able to be protected, provided that it is made in good faith, and that violations would be assessed on their gravity, compared with that of competing interests, such as the rights of property owners to not have temporary structures erected on the balconies of their building. Finally, the Court asserted that freedom of religion is to be used as a shield, and not a sword. It is not to be used to deny the rights of others7.
If this ruling has left you more confused instead of less, it's because you've been paying attention. Amselem, while providing a framework to assess how our s. 2(a) rights should be weighed, ultimately leaves us with some very important questions:
How do we deal with parody religions such as the Church of the Flying Spaghetti Monster, especially when they are making such an important point regarding the place of religion itself in our society?
How do we recognize the rights of the non-religious, who have been and continue to be systemically discriminated against? (Note that the “God keep our land” line is still a part of "O' Canada", despite the recent edits, and that the preamble to the Constitution Act, 1982 reads, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”8.)
With Canada's diversity continuing to grow, how do we weigh the rights of competing religions with beliefs that are diametrically opposed to each other?
Sadly, this is going to be one of those posts with more questions than answers. It is our sincere hope that it will encourage people to both pay attention to this emerging issue, as well as to make their voices heard.
1 Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Bobby Henderson, “Open Letter to Kansas School Board”, online <www.venganza.org/about/open-letter/>.
3 Matthew Robinson, “ICBC rules for religious headgear remain shrouded in mystery”, Vancouver Sun (5 March 2015), online: <http://www.vancouversun.com/life/ICBC+rules+religious+headgear+remain+shrouded+mystery+with+video/10849851/story.html>.
4  2 SCR 551 [Amselem].
5 Ibid at para 39.
6 Ibid at para 52.
7 Ibid at para 62.
8 Supra note 1.