The Discrepancy in Canadian Law

By: Ante Plazonja

Lori G. Beaman is a professor at the University of Ottawa and is a holder of the Canada Research Chair in religious diversity and social change. She has published works regarding religious diversity and freedom in the past, so this article fits well in her bibliography. This article takes place around the Qat’mak region, which would appear in the southeast corner of British Columbia. The Ktunaxa people are indegionous to this land, and were concerned once Glacier Resorts expressed interest in building a ski resort. Concern quickly developed into objection, and used the Canadian Charter of Rights and Freedom (CCRF) as their primary defense, claiming the approval of the ski resort would violate their right to freedom of religion. 

This specific case focuses on freedom of religion in a Canadian context, as a constitutional human right. According to Beamen, the Ktunaxa case exposes some of the challenges related to this fundamental human right. She states that it is linked to majoritarian conceptions of religion through a Western lens, and the use of accommodation as the use of human rights, rather than equality, and the changing conceptions of “practices, symbols and places as religious, sacred, or cultural”. 

She discusses the genealogy of religious freedom, and states that it has been in the Canadian lexicon from at least the 1760’s. At the birth of religious freedom in Canada, was the Treaty of Paris in 1763. This placed Christianity at the center, and the courts interpretations enforced this. Following this, was the Quebec Act of 1774 and the Constitution act of 1867. Both of these pieces of legislation were primarily concerned with the two main religions of Roman Catholicism and Protestantism. At this point of time, only Christian sects were the only religions being considered for legal protection. She points to Jehovah’s Witnesses as great defenders of religious freedom, due to their tireless campaigns, such as door-to-door knocking, refusing military service, and so on. They had a crucial part in recognizing religious freedom for religious minorities in Canada as well, during their campaign in the 1950’s. In Quebec, which was the province most structured around an organized religion, passed a bylaw that banned them from passing out their pamphlets. In the Saumur v. City of Quebec case of 1953, they challenged the Catholic status quo by upholding their right to engage in religious activities, other than the two main strands. It eventually reached the Supreme Court of Canada where they stated that “The Christian religion, its practices and profession,(…) stands in the first rank of social, political and juristic importance.

A Shift in Canadian Human Rights

Beaman claims the the 1980’s brought a new era of human rights, particularly to freedom of religion in Canada. With the passing of the CCRF in 1982, it enhanced legal protection of religion, with many provisions relating to it. But, Beaman claims that there are statements that still alienate religions other than the two main forms, as there is no formal separation of church and state, and the charter states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law”. She goes on to say that Canada is experiencing what she refers to as “new diversity”. This is the dramatic increase of people who are non-religious, the increasing amount of immigrants who are not Christian, the declining influence of Christian religions, and the recognition of the impact of colonialism on Indigenous people and the desire to recognize Indegenous spiritualities. This diversity poses challenges to human rights, as it must guarantee the willingness to protect religious freedom outside of Christianity. 

Beaman claims that a shift from religion to culture has occured due to this “new diversity”. In the case of Big M (1985), it struck down the attempt to require stores to close on Sunday for religious purposes. The court defended minority religions that may not have Sunday as the day of rest, and safeguarded them from the “tyranny of the majority”. However, a similar claim brought by Edward Books (1986), the court secularized the claim to close retailers on sunday. The claim was the same as Big M, but the court defended it was not religious in motivation, but attempting to form a culture of uniforming a holiday to retail workers. 

Beaman continues, and begins her discussion of human rights in relation to reasonable accommodation. This discourse has taken place in employment situations in which employees have sought accommodation, such as wearing religious pieces of clothing, or resting on holy days. Employers have a duty to accommodate religious employees, unless for some legitimate bonafide reasons. For Beaman, accommodation was introduced to resolve the problem of “difference”.  She claims that reasonable accommodation has furthered inequality, rather than its hypothetical goal of equality. She states that accommodation has maintained a hierarchy that inevitably preserves the privilege of one group to bestow accomodation on another. The Multani Case (2006) acted as a catalyst as it brought a great amount of debate in Quebec about what some claimed was too much accommodation. It created a public commission to see if their accommodation practices aligned with their “value’s as a pluralistic, democratic, egalitarian society” (420). The commission received 900 submissions, and anxiety over Muslims was a common theme. Ultimately, the commission report cautioned against the use of “reasonable accommodation” to resolve matters concerning religious symbols and practices, and advocated for the use of concerted ajustement”. She goes onto say that for religious freedom, law shapes not only the ways cases are structured for legal reasons, but it also sends a powerful message about what and who is included in the notion of religion. These are essential for understanding concepts such as “reasonable accommodation” as it asks the question; who gets it and why?

Lastly, she moves onto the Ktunaxa case itself. Treaties have been formed between the colonial powers and the Indigenous populations ever since the Europeans arrived. Prior to confederation in 1867, the British government had negotiated many treaties with Indigenous people in Eastern Canada. Initially, it was a nation-to-nation relationship but gradually turned into one of assimilation, such as the residential school system. Under this system, Indigenous children were taken from their homes and families and sent to schools in hopes to severe them from their culture and identity. The commission known as the Truth and Reconciliation Commission was formed in 2008 to study the impact of the residential schools and to make recommendations. In 2015, they released its final report and 94 Call to Action, with the overall theme of reconciliation. It noted the failure for Canada, and other former British colonies, such as Australia and The United States, to recognize the UN Declaration on the Rights of the Indigenous Peoples. The historical treatment of Indigenous people in these countries are extremely similar to the Indigenous experience in Canada, and in 2016, the Canadian government declared itself as fully supportive of it. Bill C-262, An Act to Ensure that the Laws of Canada are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples, remains before the senate and has not yet been passed. This is the context that the Ktunaxa case was decided.

The Supreme Court of British Columbia concluded that the Ktunaxa claim was not protected by the Charter, ass it was seeking the protection of the object of their belief, rather than the belief or practice itself. It claims it is the states duty to protect everyone’s freedom to hold beliefs, not to protect the objects of belief. Neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs are being infringed by the Minister’s decision to approve the project. This case continues to raise the question of what counts as religion and how is it manifested. For a government who claimed to protect religious minorities from the “tyranny of the majority”, they have failed to do this as Indigenous communities have continued to suffer from systematic forms of discrimination. Indigenous spiritualities have not always fit the category of religion that is imagined by law during the discourse of freedom of religion. Our model has been shaped by Christianity, so it is terrible to break this mold. Christianity is inherently portable, whilst the Ktunaxa religion is anchored in a specific land where the Ktunaxa are found. The Grizzly Bear spirit found on this land is only present here, and nowhere else, making it extremely significant for their spiritual practices.

Reflection

Beaman is great at exposing how our apparent “secular laws” still does not show an equal amount of respect to all religions and spiritualities found within our borders. This chapter has touched on issues related to human rights in a Canadian context, which is especially meaningful to a Canadian like I. It was eye opening to realize that we do not have a complete separation of church and state, as Queen Elizabeth is simultaneously the head of state and head of the church. The CCRF is hypothetically a piece of legislation that protects all Canadians innate human rights, but the Ktunaxa case exposes a flaw in the system. Definitions, concepts, and practices have all been shaped by our Judaeo-Christian past, and the legal system fails to protect the “majority of the tyranny” like they stated they would. It shows the asymmetrical balance present in the current Canadian legal structure, as the Christian-influenced definition of religion has shaped our legal code. Whilst reading this article, I had an issue when she initially claimed that “reasonable accommodation” was a way of reiterating inequality, as it allows one group to bestow accommodation onto another. Initially, I thought it was a ridiculous claim as the groups providing accommodation are an impartial board, with no biases or discrimination, but Beaman made me realize that if the definitions are bias from the start, it is impossible to have impartiality. The use of the Ktunaxa case is remarkable in proving her thesis, which is religious freedom in a Canadian context has been informed by Christian biases, and as a result, other spiritualities and minority religions have fallen off the wayside.

Questions

1. Are you surprised by the lack of impartiality in our court system? Is it implicitly or explicitly bias?
2. Can we truly protect from the “tyranny of the majority” and create an equal Canada for all religions and faiths?
3. Should the Supreme Court of Canada get involved?