In Canada, issues have arisen that challenge the relationship between religious and secular society, and raise questions about the nature of Canadian multiculturalism. While these issues reinforce the importance of protecting minority religious rights, in some cases they demonstrate how, for some, assertions of religious freedom can lead to dysfunctional consequences.
Recently, the notion of reasonable accommodation came to public attention in the province of Quebec as a societal response to issues of minority religious assertions. In one example, chassidic Jews objected to the public visibility of women exercising in a fitness facility. In response to religious sensibilities, the facility voluntarily covered its windows.
As in this case, most of the instances that have given rise to the discussion of reasonable accommodation have been settled through voluntary measures. However, some issues need to be resolved through the courts. For example, the objection raised by Hutterites in Alberta to mandatory photographs on drivers’ licences will shortly be heard by the Supreme Court of Canada.
In response to this debate, the Quebec government created the ill-conceived Bouchard/Taylor Commission on reasonable accommodation. The commission has recently completed its hearings and will be reporting in March 2008. The work of the commission, however, has lead to two unfortunate consequences.
First, it conducted some of its hearings through a series of “town hall” meetings that, like radio phone-in shows, encouraged participants to vet bigoted views without restraint. Many of those views reflected anti-immigration attitudes akin to those in to the now-famous L’Herouxville code of conduct for newcomers.
Secondly, the proposals made in response to the commission by some Quebec political parties raise some concerns. For example, the Quebec government has proposed and has begun the process of amending the Quebec Charter of Rights granting primacy of one right over another. More specifically, it will create a hierarchy of rights, giving priority to gender equality over freedom of religion. Some Jewish organizations have opposed this measure.
In addition, the Quebec Liberal party proposed that, as part of the immigration process, newcomers be required to sign a “moral commitment” to the province’s core values.
Most recently, the Parti Québécois has suggested that the Quebec Charter of Rights be amended to permit the courts to protect and promote Quebec culture. It also advocates the promotion of Christian tradition by the display of symbols, like the crucifix, in state institutions.
Ironically, rather than developing a legal formula to deal with issues of reasonable accommodation, the commission’s work to date promotes majoritarian values and predictably will result in diminished accommodation for minority religious beliefs and practices.
Over the past two years, policy-makers have wrestled with the issue of the role of religious law in an otherwise secular society. Specifically, this matter arose in the context of a proposed amendment to Ontario’s Arbitration Act. This amendment would have allowed the use of sharia, or Islamic law, to deal with primarily matrimonial issues. After much discussion, the Ontario Government chose to disallow the use of all religious law in any formal proceedings. This, however, has not precluded the private use of sharia, Halachah or any religious law by those who strongly adhere to religious legal dictates.
In a recent decision, the Supreme Court of Canada (Bruker vs. Marcovitz) dealt specifically with issues of Jewish halachic law involving the withholding of a get and other related matters. What is most significant in this case is that religious law is subject to the review and scrutiny of our domestic courts. In fact, despite his reliance on Halachah, the husband argued that his rights were infringed under the Quebec Charter of Rights.
Although the argument did not succeed, this case underscores that religious law is itself subject to regular domestic law.
Moreover, the majority of the Supreme Court of Canada held that Canada rightly prides itself on its evolutionary tolerance for diversity and pluralism. This journey has included a growing appreciation for multiculturalism, including the recognition that ethnic, religious or cultural differences will be acknowledged and respected. However, not all differences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their expression are arbitrary.
As a society that is vibrant, multicultural and secular, we must strike a delicate balance. While we must respect and accommodate differences, we must also recognize the competing values that reflect the principles of equality and justice applicable to all.