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Lecture 9

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McMaster University
Political Science
Nibaldo Galleguillos

Freedom of religion could not be used to infringe upon the rights of others. Where the exercise the freedom of religion posed a risk to others it should not be allowed. Dealing with risk to harm, the court had initially put it in the context of freedom of religion claim. But later, they moved it in the context of section 1. The case where the medical authorities gave the child to the state to be put under the state’s authority, get the blood transfusion and then be returned to the parents. The burden the state would have to show in terms of justifying its infringement on freedom of religion rights would be lessened. d) Risk of Harm to Others Ross v. N.B. School District No. 15 [1996] 1 SCR 825 – Ross was a school teacher who was publicly disseminating the opinion that Christian religion was being destroyed by Western Civilization. He was doing so through public appearances and by letters to newspapers. He described the statements as honest religious statements necessary for Christianity and the understanding of god. He picked on Jews and no other religions. The school board held an inquiry, it resulted in him being removed, and he will be terminated if he resumed his anti- sematic activities. He sued the school board on basis of violation of his freedom of religion. The court asked the School board upheld his removal of teaching position, but did not terminate it. Court said it violated his freedom of religion and expression rights. They upheld removal from class room provisions under section 1 where they examined the potential of harm to others. You are still left with a rather ambiguous statement as to how to evaluate the harm to others. Syndicat Northcrest v. Amselem – Amselem and three other individuals who lived in a condominium building were orthodox Jews; they set up sukas on the communal balcony of the condo. They did so for the purpose of observing and fulfilling the 9 days of Sukkat. The condo requested to remove these huts as required by the building by-laws. When the people refused, the condo got a board order to remove the huts and said they will take it to court. They fought it all the way to Supreme Court of Canada for 9 days. The court set out scope of freedom of religion and established this idea of harm to others. Nexus of religion in which an individual demonstrates they are seriously connecting with the divine irrespective of the fact if it is required by a religion dogma. From this we get the four stage test of freedom of religion. 1. Activity in question has to be a religious practice and that will vary. What is practice to some is not practice to others. 2. That religious practice has to have a connection or nexus to the religion that is being claimed 3. Has to be a sincere belief on the part of the individual that the practice is required to conform to the tenants of the faith. When we get to this stage they talk about the idea that irrespective of the fact that practice is required by religious dogma. The Supreme Court doesn’t want to define religion or religious practices, it is the sincere belief on the part of the person, where they truly belief this practice is necessary in order to comply with the faith. Supreme Court side stepping as to what is the necessary practice in Jewish faith. Supreme Court said it is not up to us to define the practices, it depends on the person. The thing with this is that it all comes down to the credibility of the individual. It is done at the time the practice is being claimed, what matter is that you are doing it now not if you have done it in the past. Court is basically saying that doesn’t matter if Amselem and his colleagues have done this in the past or will do it in the future, it is at that time. In some ways this is a wishy washy thing because as long as the individual stands up and says they really believe in it, it will pass this stage. 4. Non- trivial significant interference with the faith – time restrictions would be significant for religions that are bound by time. So it has to be non –trivial interference. Ross case gives us the confusion of harm to others. What is confusing is the freedom of expression not the freedom of religion. Ross believed that converting the masses is a requirement of his religion: Christianity. Just because what he does is controversial and not many Christians may believe it be part of their religion, it doesn’t meant his rights should be protected less. But Ross’ case came before Amselem. Religious conduct which will potentially cause harm to your or others would not be protected but rather the place to address it would be section 1 and in the conflict of rights. Governments would have justify under section 1, court says where the religious practice causes harm to others and where it interferes with the rights of others to practice their religion the government will have to justify its infringement easily. What we are establishing with these cases if the right applies after determining the first step which is if the Charter applies. The third step is if the government can justify its infringement of the right in a democratic and free society. It is still an infringement but the government is exempted. We are accepting them as reasonable limitations. In that case the temporary huts did not pose a risk of harm to others, so Amselem and friends succeeded. Multani v. Commission Scolaire – Multanis were orthodox Sikh, who beli
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