Freedom of Religion
in Canada
Some Canadian case
precedents and legal arguments on freedom of religion in schools and in
child custody cases.
General Law
Decisions: SCHOOLS
1996]-3 S.C.R.-Adler
v. Ontario-609: Indexed as: Adler v. Ontario File No.:24347. 1996:
January 23,
24; 1996: Novembe 21:
The constitutional
questions before this Court queried: (1) whether th definitions of "board"
and "school"
in s.1(1) of the Education Act, together with the annual general legislative
grants, infringe
or deny the appellants' freedom of religion under s.2(a) of the Charter
or their
s.15(1) equality
rights by not providing funding to dissentient religion-based schools,
and if
so, is this
non-funding justified under s.1, and (2), whether s.14 of Regulation 552,
R.R.O.
1990, which
prescribed school health support services as insured services to an insured
person who
is placed in a special education program in a "school" as defined in s.1(1)
of the
Education Act,
but not to an insured person in a dissentient religion-based school, infringes
or denies the
appellants' freedom of religion under s.2(a) of the Charter or their s.15(1)
equality rights
by not providing these services to dissentient religion-based independent
schools, and
if so, was this withholding of services justified under s.1.
POINTS OF INTEREST:
"An individual,
to make out a violation of his or her rights under s.15(1) of the Charter,
must
demonstrate:
(1) a legislative distinction;
(2) that this distinction results in a denial of one of the four equality
rights on the
basis of the rights claimant's membership in an identifiable group; and
(3) that this distinction is "discriminatory" within the meaning of s.15.
The examination
of whether the distinction is discriminatory should be undertaken from
a
subjective-objective
approach, i.e., from the point of view of the reasonable person,
dispassionate
and fully apprised of the circumstances, possessed of similar attributes
to, and
under similar
circumstances as, the group of which the rights claimant is a member. In
determining
whether discrimination has occurred, it is necessary to reconstruct the
context in
which the distinction
arises. Two categories of factors prove particularly instructive:
(1) the nature of the group adversely affected by the distinction and
(2) the nature of the interest adversely affected by the distinction.
This approach
is primarily effects-oriented in its contextual determination of the impact
of the
legislation
in question on a particular group.Ê Inherent in this model is a recognition
of the
importance
of adverse impact discrimination in present-day society.
The legislature
creates a distinction between the appellants and others who are able to
access publicly
funded education in the surrounding social context. As found at trial,
remaining a
member of the particular religious communities in question and acting in
accordance
with the tenets of these faiths required that the children be educated
in a manner
consistent
with the faith and therefore outside of the public or Roman Catholic schools.
Control over
the education of their children was essential to the continuation of the
religious
communities
in question. This distinction results in the denial of the claimants' s.15
right to
equal benefit
of the law on the basis of their membership in an identifiable group.
State action
which discriminates on the basis of religion cannot be excused on the grounds
that religion
is a choice and that the individuals may choose to avoid the negative impact
which arises
from the state's response to their religious identity. Discrimination on
the basis of
religion would
become an empty concept.
The degree
of choice which a person may be expected to have in identifying with a
particular
group, while
relevant to a determination of discrimination, must be assessed from the
subjective-objective
perspective. In this case the appellants would see themselves as not
having a choice.
Section 2(a)
of the Charter is primarily concerned with the necessary limits to be placed
on
the state in
its potentially coercive interference with the original, objectively perceived
religious "choice"
that individuals make. Section 15 ensures that consequences in behaviour
and belief,
which flow from this initial choice and are not perceived by the rights
claimant as
optional, are
not impacted upon by state action in such a way as to attack the inherent
dignity and
consideration due all human persons. The protections afforded in s 15 may
thus
be of greater
scope than those in s.2(a).
Accommodation
as understood in human rights law is applicable to the rights enumerated
in
s. 15 of the
Charter. The exemption for religious parents contained in s.21 of the Education
Act does not
constitute the accommodation necessary under s.15 to ensure equal access
in
real terms.
Rather, it addresses the potential coercive aspect of mandatory secular
education
alone, and
thus allows the impugned legislation to meet the requirements of s.2(a).
In a case
of unequal
benefit, accommodation will mean taking the steps necessary to ensure access
of
these parents
without discrimination. Given the complete denial of this benefit to those
who
cannot access
it for religious reasons, the equal benefit of a publicly funded education
has
been denied
the appellants on the basis of a distinction which relates to their membership
in
an identifiable
group.
This distinction
is capable of promoting or perpetuating a view that the appellants are,
by
virtue of their
religious beliefs, less capable or worthy of recognition or value as human
beings or members
of Canadian society equally deserving of concern, respect, and
consideration.
Consideration must be given to both the nature of the group affected and
the
nature of the
interest. Dissentient minority religious groups have suffered severely
from the
historic disadvantage
which has adhered to religious identity. They are necessarily discrete
and insular
minorities given the forces of secularization in society. The consequences
which
flow from the
denial of an economic benefit are necessarily incidental to protecting
the dignity
and value of
the appellants. Denial of any funding to the appellants constitutes not
only a
financial prejudice,
but also a complete non-recognition of their children's educational needs
and the children's
and parents' fundamental interest in the continuation of their faith. In
applying s.15
in the context of the denial of funding for education to those who cannot
access it for
religious reasons, s. 27 of the Charter (dealing with the preservation
and
enhancement
of a multicultural heritage) supports a finding that the interests at stake,
the
preservation
and continuation of the communities in question, form interests fundamental
to
the purposes
of the Charter. The Education Act funding scheme represents a prima facie
violation of
the s.15 guarantee of equal benefit of the law.
While deference
has been granted the state in its legislative role by the courts in undertaking
a s.Ê1
analysis, this deference has been designed to give better effect to the
general
purposes of
the Charter. Generally, where the nature of the rights infringement falls
far from
Charter values
and where the legislative objective promotes these values, deference will
be
shown. As a
corollary, however, where the nature of the infringement lies at the core
of the
rights protected
in the Charter and the social objective is meant to serve the interest
of the
majority as
a whole, as represented by state action, courts must be vigilant to ensure
that the
state has demonstrated
its justification for the infringement. A less deferential stance should
be taken and
a greater onus remain on the state to justify its encroachment on the Charter
right in question.
In each case, therefore, only after the objective of the legislation has
been
identified
can the appropriate degree of deference be determined. "Social" legislation
per se
will not, in
the absence of these factors, warrant deference. Indeed, cases will be
rare where
it is found
reasonable in a free and democratic society to discriminate.
The objectives
of providing free public education and of fostering tolerance are clearly
pressing and
substantial in a democratic society. The former objective dictates that
the latter
be linked to
the discouragement of non-secular education. The value underlying the
legislation
is the provision of education in a manner which fulfills the majoritarian
interests of a
secular society
and it is the majoritarian interests, and not the interests of vulnerable
and
discrete social
groups, which are threatened by the funding of religious schools. The
infringement,
by contrast, affects members of an insular religious minority within a
minority to
the extent
of touching upon its members' ability to maintain their practices and therefore
upon
its ability
to survive as a community. The degree of judicial deference allowed in
other cases
is not warranted
here. The state must clearly discharge the burdens of evidence and proof
which are mandated
under s.Ê1....The appeal should be dismissed."
General law
decisions: CHILD CUSTODY:
[1993] 4 S.C.R.-Young
v. Young-3 Indexed as: Young v. Young-File No.:22227.1993:
JanuaryÊ25,
26; 1993:-October 21.
Appellant's
and respondent's separation was marked by a protracted series of court
battles.
Appellant was
awarded custody of the couple's three daughters and respondent was granted
access subject
to court imposed restrictions arising from appellant's objection to his
religious
activity with
the children. Respondent was ordered not to discuss the Jehovah's Witness
religion with
the children, take them to any religious services, canvassing or meetings,
or
expose them
to religious discussions with third parties without appellant's prior consent.
Organized religion
was not important to appellant although she wanted the children to be
raised within
the United Church.
Respondent
appealed.
Result: The
appeal should be allowed in part.
POINTS OF
INTEREST:
Best Interest
of the Child, Charter Considerations and Access Per L'Heureux-Dub?ÊJ.:
The power of
the custodial parent is not a "right" with independent value granted by
courts
for the benefit
of the parent. Rather, the child has a right to a parent who will look
after his or
her best interests
and the custodial parent a duty to ensure, protect and promote the child's
best interests.
That duty includes the sole and primary responsibility to oversee all aspects
of
day-to-day
life and long-term well-being, as well as major decisions with respect
to
education,
religion, health and well-being. The non-custodial parent retains certain
residual
rights over
the child as one of his or her two natural guardians.
Child placement
decisions should safeguard the child's need for continuity of relationships,
reflect the
child's (not the adult's) sense of time, and take into account the law's
inability to
supervise interpersonal
relationships and the limits of knowledge to make long-range
predictions.
This need for continuity generally requires that the custodial parent have
the
autonomy to
raise the child as he or she sees fit without interference with that authority
by the
state or the
non-custodial parent. A custody award is a matter of whose decisions to
prefer,
as opposed
to which decisions to prefer. Courts cannot make the necessary day-to-day
decisions which
affect the best interests of the child. Once a court has determined who
is the
appropriate
custodial parent, it must presume that that parent will act in the best
interests of
the child.
Decisions are
made according to the best interests of the child without the benefit of
a
presumption
in favour of either parent. The Act envisages contact between the child
and
each of his
or her parents as a worthy goal which should be in the best interests of
the child.
Maximum contact,
however, is not an unbridled objective and must be curtailed wherever
the welfare
of the child requires it.
The right to
access is limited in scope and is conditioned and governed by the best
interests
of the child.
The legislation makes it quite explicit that only the best interests of
the child as it
is comprehensively
understood should be considered in custody and access orders. The role
of the access
parent is that of a very interested observer, giving love and support to
the child
in the background.
He or she has the right to know but not the right to be consulted. Access
rights recognize
that the best interests of the child normally require that the relationship
developed with
both parents prior to the divorce or separation be continued and fostered.
The right to
access and the circumstances in which it takes place must be perceived
from the
vantage point
of the child. Wherever the relationship to the non-custodial parent conflicts
with the best
interests of the child, the furtherance and protection of the child's best
interests
must take priority
over the desires and interests of the parent. As the ultimate goal of access
is the continuation
of a relationship which is of significance and support to the child, access
must be crafted
to preserve and promote that which is healthy and helpful in that relationship
so that it
may survive to achieve its purpose. Sources of ongoing conflict which threaten
to
damage or prevent
the continuation of a meaningful relationship should be removed or
mitigated.
Notwithstanding a general concern about the vulnerability of access rights
to the
caprices of
a vengeful custodial parent, courts should not be too quick to presume
that the
access concerns
of the custodial parent are unrelated to the best interests of the child.
Courts
should also
not be blind to issues, such as financial support, which form part of the
broader
context in
which these rights are exercised. The access parent has no obligation to
exercise
those rights
and cannot be forced to comply with such an order even if that contact
has been
determined
to be in the child's best interest.
Where there
is a genuine problem with access, the non-custodial parent is not without
recourse in
any case. This stems from the statutory directive to facilitate access
where it is in
the child's
best interests and the role of the judge as the arbiter of those interests
in the case
of a dispute
between the parents. Generally, courts will grant liberal access to the
non-custodial
parent and usually this is consistent with the best interests of the child.
Parents
will also normally
respect their children's wishes and best interests with regard to access.
When disagreements
between parents do reach the courts, the judge must always draw the
line in favour
of the best interests of the child, from a child-centred perspective.
The best interests
of the child cannot be equated with the mere absence of harm: it
encompasses
a myriad of considerations. Courts must attempt to balance such
considerations
as the age, physical and emotional constitution and psychology of both
the
child and his
or her parents and the particular milieu in which the child will live.
One of the
most significant
factors in many cases will be the relationship that the child entertains
with his
or her parents.
Since custody and access decisions are pre-eminently exercises in discretion,
the wide latitude
under the best interests test permits courts to respond to the spectrum
of
factors which
can both positively and negatively affect a child. What may constitute
stressful
or damaging
circumstances for one child may not necessarily have the same effect on
another. The
most common presumption now governing the best interests test is the primary
caregiver presumption.
It explicitly restores the values of commitment and demonstrated
ability to
nurture the child and recognizes the obligations and supports the authority
of the
parent engaged
in day to day tasks of childrearing.
The order of
the trial judge is not subject to the Charter. Even if it were, the best
interests
test is nevertheless
value neutral and does not, on its face, violate any Charter right. Its
objective,
the protection of a vulnerable segment of society, is completely consonant
with the
Charter's values.
Broad judicial discretion is crucial to the proper implementation of the
legislative
objective of securing the best interests of the child. Such discretion
in a legislative
provision does
not of itself give rise to an inference of Charter infringement. It cannot
be
considered
in the absence of an examination of the legislative objectives and must
be
rationally
tied to those objectives.
The standard
for finding a legislative provision unconstitutional because of vagueness
is high.
The provisions
need only permit the framing of an intelligible legal debate with respect
to the
objectives
contained in the legislation. The best interests test is not so uncertain
as to be
incapable of
guiding a consideration of the factors relevant to custody and access
determinations.
The fact that it must be applied to the facts of each case does not militate
in
favour of its
unconstitutionality.
The vagueness
of a legislative provision cannot be examined in the abstract but must
be
considered
within the context of the particular legislative objectives in question,
bearing in
mind that some
objectives will require a panoply of judicial remedies for their meaningful
fulfilment.
Among the factors with which courts should be concerned when the vagueness
of
a law is at
issue are: (a) the need for flexibility and the interpretive role of the
courts, (b) the
impossibility
of achieving absolute certainty, a standard of intelligibility being more
appropriate
and (c) the possibility that many varying judicial interpretations of a
given
disposition
may exist and perhaps coexist.
The custodial
parent need not show harm in order to restrict access to the children by
the
non-custodial
parent. There is no rationale for defining the best interests of the child
with the
absence of
harm. Nothing in the Act mandates or even suggests that "real danger of
significant
harm to the child" be the sole consideration in matters of custody and
access.
Indeed, the
harm test would require courts to ignore the very factors which are set
out in the
Act and invert
the basic focus of the inquiry into custody and access. The welfare of
children
is put at considerable
risk if the prospect of harm becomes the sole prerequisite for
restrictions
on access. The best interests of the child is not simply the right to be
free of
demonstrable
harm; it is the positive right to the best possible arrangements in the
circumstances
of the parties. The harm test cannot meet the legal system's primary goal
in
divorce situations
-- minimizing the adverse effects of children. This goal requires a vision
of
the best interests
of the child that is more than neutral to the conditions under which custody
and access
occur. Judges must exercise their discretion to prevent harm to the child
rather
than merely
identify or establish its presence after the damage is done.
Expert evidence
should not be routinely required to establish the best interests of the
child.
Expert testimony,
while helpful in some circumstances, is often inconclusive and
contradictory
because such assessments are both speculative and may be affected by the
professional
values and biases of the assessors themselves. Experts are not always better
placed than
parents to assess the needs of the child. The person involved in day to
day care
may observe
changes in the child that could go unnoticed by anyone else and normally
has
the best vantage
point from which to assess the interests of the child. The custodial parent,
therefore,
will often provide the most reliable and complete source of information
to the
judge on the
needs and interests of that child. The importance of the evidence of children
in
custody and
access disputes, too, must be emphasized.
Restrictions
on access do not necessarily prevent children from coming to know their
parents
in meaningful
ways. Interpreting the goal of maximum contact as requiring unrestricted
access
may defeat
the Act's objective if the pre-eminence of unlimited "knowledge" results
in the
ultimate destruction
of the relationship. In this case, the purpose of the restrictions was
to
ensure that
the children will continue to know their father "at all".
Freedom of
religion and freedom of expression are public in nature and encompass the
freedom of
the individual from state compulsion or restraints. The state's role in
custody and
access decisions
does not transform the essentially private character of parent-child
interchanges
into activity subject to Charter scrutiny. Legitimate questions may arise
about
the role of
the state, and hence the application of the Charter in regulating other
aspects of
family law.
A valid purpose can hardly be served, however, by importing the discourse
of
freedom of
expression and religion into orders made in the resolution of custody and
access
disputes. Once
the best interests test itself has been found to accord with Charter values,
the
trial judge's
order itself is not subject to further constitutional review, as the necessary
state
infringement
of religious rights required to sustain a Charter challenge is not present.
The
principles
enunciated in Dolphin Delivery apply as custody and access matters are
essentially
private in
nature and there exists no state action to be impugned.
Decisions regarding
custody and access must not be based on the parents' faith. The religion
of the parties,
however, may be relevant as one of the circumstances to be assessed in
the
determination
of the best interests of the child. Where there is conflict over religion,
the court
is not engaged
in adjudicating a "war of religion" and the religious beliefs of the parties
themselves
are not on trial. Rather, it is the manner in which such beliefs are practised
together with
the impact and effect they have on the child which must be considered.
In all
cases where
the effects of religious practices are at issue, the best interests of
the child must
prevail.
Ordinarily,
the exposure of a child to different religions or beliefs may be of value
to the
child. Where
religion becomes a source of conflict between the parents or is the very
cause
of the marriage
breakdown, it is generally not in the best interests of the child and may
in
some circumstances
be very detrimental for the child to be drawn into the controversy over
religious matters.
Where there is conflict over religion, courts must secure the longstanding
authority of
the custodial parent to make decisions over religious activities. This
ensures that
stress occasioned
by such issues does not become a continuing and ultimately destructive
feature in
the life of the child after divorce.
Freedom of
religion is not an absolute value. Here, powerful competing interests must
also
be recognized,
not the least of which, in addition to the best interests of the children,
are the
freedoms of
expression and religion of the children themselves.
Respondent's
religious beliefs and practices and his general rights of access were not
threatened.
The restrictions were aimed at reducing the area of conflict which had
arisen on
account of
the respondent's behaviour with his children during access and the effects
of that
behaviour on
their best interests. Much of the stress the children were experiencing
was
related to
their resistance to becoming involved in their father's religious practices.
The
restrictions
were to further the best interests of these children by removing the source
of
conflict, particularly
as the ultimate purpose of the restrictions was to preserve the
relationship
between the respondent and his children. Evidence supported the conclusion
that
the respondent
would not respect the wishes of the children without an order to do so.
This information was provided
by and used with permission from The Witches Voice Inc.
