Human Rights, Religion and Social Diversity: A Private Law Perspective January 18, 2011 Professor Rosalie Jukier

Backdrop When we think about the Charter or rights and freedoms, we think of the sphere of public law When we think about the Charter or rights and freedoms, we think of the sphere of public law Typically we think of this in terms of the contours of the power of the State to limit citizens’ rights and freedoms Typically we think of this in terms of the contours of the power of the State to limit citizens’ rights and freedoms Interaction between human rights (religious rights) and private law (particularly contracts) Interaction between human rights (religious rights) and private law (particularly contracts)

Syndicat Northcrest v. Amselem Condominium agreement states: Condominium agreement states: “No owner my enclose or block off any balcony, porch or patio in any manner whatsoever or erect theron construction of any kind what soever” “No owner my enclose or block off any balcony, porch or patio in any manner whatsoever or erect theron construction of any kind what soever”

Bruker v. Marcovitz Another clash between contractual rights and religious freedom Another clash between contractual rights and religious freedom “Get” clause: Promise by husband to appear before the Beit Din (religious tribunal) to consent to give his wife a get and release her religiously from the marriage “Get” clause: Promise by husband to appear before the Beit Din (religious tribunal) to consent to give his wife a get and release her religiously from the marriage

Refusal to grant wife a get 0Ty8M8ZDiT0&feature=related 0Ty8M8ZDiT0&feature=related 0Ty8M8ZDiT0&feature=related 0Ty8M8ZDiT0&feature=related Can woman obtain damages for non- performance (which essentially means court will enforce this contract containing a religious obligation) Can woman obtain damages for non- performance (which essentially means court will enforce this contract containing a religious obligation) Can husband argue freedom from religion? Can husband argue freedom from religion?

The Collision of Civil and Religious Worlds Question 1: Are these cases simply contract cases that happen to have a religious context OR are these cases freedom of religion cases that happen to arise in the contractual context? Question 1: Are these cases simply contract cases that happen to have a religious context OR are these cases freedom of religion cases that happen to arise in the contractual context?

Public versus Private Law Contexts Question 2: To what extent are the same principles and tests of freedom of religion, that are applicable in the public law context, applied in these contract cases? Question 2: To what extent are the same principles and tests of freedom of religion, that are applicable in the public law context, applied in these contract cases?

Definition of Freedom of Religion (majority Amselem) “In essence, religion is about freely and deeply help personal convictions or beliefs connected to an individual’s spiritual faith…” “In essence, religion is about freely and deeply help personal convictions or beliefs connected to an individual’s spiritual faith…” Freedom of religion is “the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine” Freedom of religion is “the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine”

Justice Binnie’s dissent in Amselem “There is a vast difference…between using freedom of religion as a shield against interference with religious freedoms by the State and as a sword against co- contractors” “There is a vast difference…between using freedom of religion as a shield against interference with religious freedoms by the State and as a sword against co- contractors”

Consistency? Question 3: Are the cases of Amselem and Bruker consistent? How does Amselem square with the Hutterian Brethren decision? Question 3: Are the cases of Amselem and Bruker consistent? How does Amselem square with the Hutterian Brethren decision?

Secular State Question 4: How do we reconcile freedom of religion in our supposedly secular state? Question 4: How do we reconcile freedom of religion in our supposedly secular state?

State neutrality “The State is in no position to be, nor should it become, the arbiter of religious dogma” “The State is in no position to be, nor should it become, the arbiter of religious dogma” Justice Iacobucci in Amselem Justice Iacobucci in Amselem “Courts must refrain from becoming involved in disputes between parties that are internal to their religions” “Courts must refrain from becoming involved in disputes between parties that are internal to their religions” Justice Hilton, C.A. Bruker Justice Hilton, C.A. Bruker “Secular law has no effect in matters of religious law…” “Secular law has no effect in matters of religious law…” Justice Deschamps, dissenting in SCC Bruker Justice Deschamps, dissenting in SCC Bruker

Gender Equality? Question 5: Is there, or should there be, a link between religious freedom and gender equality? Question 5: Is there, or should there be, a link between religious freedom and gender equality?

Gender equality “It is not the role of secular courts to palliate the discriminatory effect of the absence of a ghet on a Jewish woman who wants to obtain one” “It is not the role of secular courts to palliate the discriminatory effect of the absence of a ghet on a Jewish woman who wants to obtain one” Justice Hilton, C.A. Bruker Justice Hilton, C.A. Bruker Triumph of gender equality over religion? Triumph of gender equality over religion?

Public Policy Question 6: What is the link to public policy in the Bruker case and is it appropriate? Question 6: What is the link to public policy in the Bruker case and is it appropriate?

Conclusion Many ways to read Bruker v. Marcovitz: Many ways to read Bruker v. Marcovitz: Individual freedom of religion Individual freedom of religion Crucial test of the state’s secular identity (and unlawful interference in the religious sphere) Crucial test of the state’s secular identity (and unlawful interference in the religious sphere) Gender equality Gender equality Contract case to which ordinary principles of contract apply Contract case to which ordinary principles of contract apply

Conclusion Canada: multicultural federation, operating within a pluralistic society Canada: multicultural federation, operating within a pluralistic society Mosaic, celebrating multiple identities, rather than a melting pot Mosaic, celebrating multiple identities, rather than a melting pot How to accommodate the delicate balance between religious freedom and our secular state? How to accommodate the delicate balance between religious freedom and our secular state?