In 2019, the federal government has been inconsistent about a potential ban on conversion therapy even though the practice is harmful and professionally disregarded. This article will pose and attempt to answer a series of questions:

• What is the ‘therapy’ and why is the government considering a ban?
• Why has the government been inconsistent in it’s messaging about the practice? And,
• What are the potential constitutional hurdles to banning conversion therapy in Canada?

A Discredited ‘Therapy’

Conversion therapy is the discredited practice of attempting to “stop an individual from being homosexual or transgender”[1] or any other diverse gender or sexual identity. This article will use the label “GSD” [gender and sexually diverse] as an umbrella term to describe anyone with a gender or sexual identity outside of heterosexual and cisgender. Conversion therapy is used to attempt to ‘convert’ GSD people to become heterosexual or cisgender.

Conversion therapy was widely practiced in the past when GSD identities were disdained – this lead GSD people or their families to seek ‘therapy’ to turn GSD people ‘normal’ (heterosexual or cisgender). Conversion therapy was “the treatment of choice when homosexuality was thought to be an illness” but the practice has declined as GSD identities have become more accepted in wider society.[2] Nonetheless, it is still practiced.

Conversion therapy can have a psychological or religious basis.[3] Common ‘treatment’ techniques include “psychotherapy, psychoanalysis, hormones, and several types of aversion therapy.”[4] A subject can experience deep psychological trauma from these methods even if no physical pain is inflicted. Many survivors of conversion therapy express that they have deep psychological scars from the practice – for example, one survivor called his experiences “soul-crushing torture.”[5]

The Canadian Psychological Association stated that conversion therapy does not accomplish it’s goals and “can result in negative outcomes such as distress, anxiety, depression, negative self-image, a feeling of personal failure, difficulty sustaining relationships, and sexual dysfunction.”[6] Thus, conversion therapy is a painful and harmful exercise that does not work – so why has the federal government not banned the practice?

Mixed Messages

In March 2019, despite acknowledging the practice as “immoral” and “painful,” the federal government said that it would not ban the practice throughout Canada.[7] However, in a June 21, 2019 letter to the Alberta Minister of Justice, the federal government stated that they are “committed to doing everything within [our] jurisdiction to combat conversion therapy” through Criminal Code reforms.[8]

There is no doubt that pre-election politics are influencing the federal government’s evolving stance on banning conversion therapy. With a federal election scheduled for October 21, 2019, it is realistic that political parties would attempt to curry favour among GSD Canadians and their allies.

What are some reasons the government has been reluctant to ban the discredited practice throughout the country? What constitutional hurdles would the government face if it attempted to ban the practice through criminal law?

A Provincial Domain?

In March 2019, the federal government’s refusal to outlaw conversion therapy was because they believed that the provincial governments had jurisdiction for the issue through the regulation of health care.[9] While health care is not exclusively in the jurisdiction of the either the federal or provincial governments, on-the-ground delivery of health care is administered by provincial governments. The constitutional authority is found in a number of sections of the Constitution Act, 1867, including the expansive s 92(13)– the control of property and civil rights in the provinces.[10] Since provinces can decide what is and what is not considered health care, the regulation of a discredited practice like conversion therapy is thought to rest with the provinces.

Currently, Ontario, Manitoba, and Nova Scotia have enacted bans on conversion therapy.[11] Also, cities such as Vancouver and St. Albert, Alberta have banned businesses from practicing conversion therapy in their municipalities.[12] In Alberta, the previous New Democratic Party Government established a working group to recommend a plan to ban conversion therapy but the new United Conservative government has been noncommittal about whether they will implement any recommendations.[13]

Thus, the federal government may desire to leave the banning conversion therapy to the provinces through the regulation of health care. Ottawa may have been fearful that a federal law could encroach on provincial jurisdiction and be struck down for being out of the powers of the federal government.

Ottawa was also reluctant to further regulate conversion therapy because they believed that Criminal Code offences already captured many of the criminal acts in the practice. Other “offences such as kidnapping, forcible confinement and assault may apply where a person is forcibly compelled to undergo conversion therapy.”[14] However, pre-election politics and the desire to stop a harmful practice may have led the federal government to consider criminally banning the practice.

Criminal Law

The federal government has the sole authority to make criminal laws in Canada.[15] The standard test for whether legislative action is a “criminal law” is:

• The law creates a prohibition,
• there is a penalty for breaching the prohibition, and
• the law has a criminal law purpose (“public purpose which can support it as being in relation to the criminal law”).[16]

The criminal barring of conversion therapy would need to be found to have a criminal purpose for the federal government to use its criminal law power.

Esteemed constitutional scholar Peter Hogg notes that there “is a criminal-law aspect of health,” allowing the federal Parliament to “punish conduct that is dangerous to health.”[17] If the federal government created a criminal law banning conversion therapy, they could justify it as conduct dangerous to the health of GSD persons, and thus arguably with a criminal law purpose.

However, if a federal criminal law is enacted, it risks other potential constitutional challenges. At least two Charter challenges exist. The first is that a ban on conversion therapy is a potential infringement on liberty.

Loss of Liberty?

Any law that can lead to imprisonment is as a deprivation of liberty, and thus an infringement on s 7 of the Charter unless it is found to be “in accordance with the principles of fundamental justice.”[18] Carissima Mathen, vice-dean of the University of Ottawa Faculty of Law, states that “there is a potential Section 7 challenge [to a conversion therapy ban] on the basis that the law is just too blunt a tool and you're putting people at risk of imprisonment in ways that are fundamentally unfair."[19]

Of course, it is impossible to know whether an infringement on liberty would be in accordance with the principles of fundamental justice without first seeing a law. Much would depend on what exactly was prohibited, who was targeted, and what the penalty was. If a ban was comprehensive, it may be harder to justify than a narrower ban against minors undergoing the ‘treatment.’ If those seeking conversion therapy were targeted as well as providers, it may also be harder to justify.

As with any infringement on liberty, a law with jail time could be subject to a s 7 Charter challenge which would depend on the details of the law. Even if the ban was found to breach the Charter, the government would get the chance to justify the law under s 1 by arguing that the benefits to outlawing conversion therapy outweigh any Charter infringement. The question becomes, could the law as drafted be sold as a reasonable limit on rights, demonstrably justified in a free and democratic society?

Freedom of Religion

An outright ban on conversion therapy could also infringe the freedom of religion guaranteed by s 2(a) of the Charter. Conversion therapy is often practiced in religious settings by people who believe that their religion is incompatible with GSD identities.

Freedom of religion allows individuals to “be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates” if the religious practices “do not injure his or her neighbours.”[20] Arguably, a ban could not apply to recipients who actively choose to participate in conversion therapy because of their deeply held religious beliefs. Daniel Lerner, a Toronto criminal defence attorney, states that he could see a freedom of religion argument from individuals who believe that a ban would stop them from exercising their religious beliefs.[21]

Without a draft law, it is difficult to speculate whether religious rights would be infringed. However, it is a possible route for a religious person who wants to try and change their sexuality or gender identity to challenge a federal ban. It remains to be seen how the courts would handle such a challenge, or how much significance would be given to the harmful nature of the practice.

Conclusion

It is likely that a debate about banning conversion therapy in the Criminal Code will be part of the political gamesmanship of the upcoming federal election campaign.  The federal Liberals have sent mixed messages, the federal New Democrats have called for a ban on conversion therapy throughout Canada,[22] and Conservative leader Andrew Scheer says that he will “wait and see” before taking a position on a conversion therapy ban.[23]

If after the election, a law banning conversion therapy is enacted there are several potential constitutional challenges. This includes assessing if the law is in federal jurisdiction and if the ban infringes an individual’s Charter rights. However, it is important to note that even if a Charter breach is found, the government can try and justify the law under s 1 of the Charter.

What is clear is that conversion ‘therapy’ is a discredited and harmful practice. The provinces are slowly banning the practice through regulation of health, but there has been no federal ban because of constitutional concerns. As the federal election campaign politics heats up, the issue will likely be discussed, and a ban could follow the election. Thus, the potential regulation of conversion therapy in Canada has been slow, fraught with mixed messages, and has several constitutional hurdles. Time will tell if the harmful effects of the practice will outweigh the uncertain constitutional status and lead the federal government to action.

[1] Devinn Larsen, “Striving for Change: California’s Attempt to Outlaw Conversion Therapy” (2019) 50:2 McGeorge L Rev 285 at 286.

[2] Douglas C Halderman, “The Practice and Ethics of Sexual Orientation Conversion Therapy” (1994) 62:2 Journal of Consulting and Clinical Psychology 221.

[3] Ibid.

[4] MJ MacCulloch & MP Feldman, “Aversion therapy in Management of 43 Homosexuals” (1967) 2 British Medical Journal 594. Aversion therapy commonly uses the technique of showing pictures of men or women that the subject finds sexually desirable and then inflicting pain, such as electroshock therapy, in an attempt to ‘train’ the subject not to be attracted to a member of the same gender.

[5] Peter Gajdics, “I experienced ‘conversion therapy’ – and it’s time to ban it across Canada,” Maclean’s (6 June 2018), online: <macleans.ca/opinion/i-experienced-conversion-therapy-and-its-time-to-ban-it-across-canada/>.

[6] Canadian Psychological Association, “CPA Policy Statement on Conversion/Reparative Therapy for Sexual Orientation” (2015), online (pdf): Canadian Psychological Association <cpa.ca/docs/File/Position/SOGII%20Policy%20Statement%20-%20LGB%20Conversion%20Therapy%20FINALAPPROVED2015.pdf>.

[7] Hannah Thibedeau, “Ottawa looking at Criminal Code reforms to deter ‘shameful’ conversion therapy,” Canadian Broadcasting Corporation (9 July 2019), online: <cbc.ca/news/politics/conversion-therapy-criminal-code-1.5204919>.

[8] Ibid.

[9] Perlita Stroh, “Ottawa rejects plans for nationwide conversion therapy ban,” Canadian Broadcasting Corporation (23 March 2019), online: <cbc.ca/news/canada/the-national-conversion-therapy-federal-petition-1.5066899> [Stroh].

[10] Peter W Hogg, Constitutional Law of Canada (2017 Student Edition) (Toronto: Thompson Reuters, 2017) at 32-2 [Hogg].

[11] Stroh supra note 9.

[12] Ibid.; Phil Heidenreich, “St. Albert City Council unanimously passes motion to crack down on conversion therapy” Global News (8 July 2019), online: <globalnews.ca/news/5473416/st-albert-city-council-conversion-therapy-motion-passes/>.

[13] Phil Heidenreich, “Email from Alberta health minister offers mixed message on conversion therapy group’s status,” Global News (7 June 2019), online: <globalnews.ca/news/5368734/tyler-shandro-conversion-therapy-group-alberta/>.

[14] Stroh supra note 9.

[15] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(27), reprinted in RSC 1985, Appendix II, No 5.

[16] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50.

[17] Hogg supra note 10 at 18-12.1.

[18] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[19] Mark Gollom, “Federal ban on conversion therapy could face constitutional hurdles,” Canadian Broadcasting Corporation (10 July 2019), online: <cbc.ca/news/politics/conversion-therapy-ban-federal-government-1.5205696> [Gollom].

[20] R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346.

[21] Gollom supra note 19.

[22] New Democratic Party of Canada, “NDP: Let’s Put an End to Conversion Therapy” (4 August 2019), online: <ndp.ca/news/ndp-lets-put-end-conversion-therapy>.

[23] Rachel Browne, “Andrew Scheer will ‘wait and see’ before taking stance on Liberal plan for conversion therapy ban,” Global News (10 July 2019), online: <globalnews.ca/news/5479933/conversion-therapy-ban-2/>.

Chani Aryeh-Bain, Conservative Party candidate in the upcoming federal election in the Toronto riding of Eglinton-Lawrence, and Ira Walfish, political activist, both adhere to an Orthodox Jewish faith and strictly follow religious holidays.[1] The date of the upcoming federal election, October 21, happens to coincide with the Jewish holiday of Shemini Atzeret. Aryeh-Bain and Walfish requested of Canada’s Chief Electoral Officer (CEO) that the date of the election change. They believed the date infringes their religious, democratic, and equality rights under the Charter.[2] The challenge resulted in an initial denial by the CEO, a Court decision which required re-determination, and the CEO’s ultimate decision to keep the election date on October 21 – or Shemini Atzeret – despite the Charter implications for Aryeh-Bain and Walfish.

A Jewish Holiday and a Federal Election

Shemini Atzeret is at the end of the Jewish holiday period of Sukkot. The holiday “has no distinctive ritual,” so it is often associated as a day of rest at the end of the Sukkot period, which was historically a time of pilgrimage.[3] Work is not permitted on the day of rest.[4] In 2019, Sukkot will fall on a date of election advance polling (October 14, 2019) and Shemini Atzeret falls on election day itself (October 21, 2019).[5]

Shemini Atzeret is not practiced by all who hold the Jewish faith – in fact, it is one holiday that has “baffled” some Jewish people because it is not understood or faithfully followed by all.[6] Orthodox Jews are the religious group who most often adhere to the strict rituals of Shemini Atzeret – it is estimated that the there are 75,000 people in Canada that practice an Orthodox Jewish faith.[7]

Thus, in exercising their faith Orthodox Jews do not work on Shemini Atzeret. This has important consequences as observant Jewish people are prohibited from “writing, driving… using any electronic devices such as televisions, computers and phones… [or] voting, volunteering or otherwise participating in election campaigns.”[8]

When Ms. Aryeh-Bain won the Eglinton-Lawrence Conservative Party nomination on April 14, 2019, she “was immediately concerned about the impact of the election date with Shemini Atzeret, and the effect it would have on her campaign.”[9] She wrote to Elections Canada Chief Electoral Officer (“CEO”) Stéphane Perrault on April 18, requesting that the election date move to October 28 because, in her words, “having Jewish candidates and voters disadvantaged runs contrary to their rights to equality under the Charter of Rights and Freedoms.”[10] In addition, there were more than 140 letters from the Canadian public to Elections Canada asking the CEO to consider moving the date so observant Jews could fully participate in the election process.[11]

While federal election dates are pre-set (subject to Parliament dissolving early) on the third Monday of October in the fourth calendar year,[12] the CEO of Elections Canada has discretion to recommend changing the election date to the next day (October 22) or the following Monday (October 28).[13] There is precedent for moving an election because of conflict with Shemini Atzeret. In 2007, Ontario moved their provincial election from October 4 to October 10 because the original date fell on Shemini Atzeret and was deemed to negatively effect observant Jews.[14]

CEO Perrault denied Ms. Aryeh-Bain’s request to change the election date. In a letter dated May 7, 2019, Perrault says that it is “unfortunate” that the election date falls on Shemini Atzeret and that it “may have an impact” on her candidacy, but he reiterated that “Elections Canada does not choose election dates.”[15] However, CEO Perrault vowed to find ways to “ensure that the next general election will be as accessible as possible to electors who may not vote on election day in observance of Jewish holidays.”[16]

Ms. Aryeh-Bain and Mr. Walfish then sought judicial review of Elections Canada’s decision, asking the Federal Court to re-evaluate the administrative agency’s determination.

The Federal Court: Give us Reasons

In Aryeh-Bain v Canada (Attorney General),[17] McDonald J of the Federal Court required CEO Perrault to reconsider his decision. As CEO of Elections Canada, Perrault is the administrative decision maker – as such, his decision would often be given deference. However, when an administrative decision engages Charter rights – in this case democratic rights, religious freedoms, and equality rights – there must be a proportionality analysis weighing the Charter protections with the objectives of the Act that is being administered.[18] This means that a standard of review of reasonableness – the administrative decision maker’s decision will stand if it falls within a range of reasonable outcomes – will be applied if consideration is given to the Charter values at issue.

Justice McDonald’s judgment focuses primarily on section 3 of the Charter – democratic rights. According to the Supreme Court of Canada (“SCC”), the “central purpose of s 3 is to ensure the right of each citizen to participate meaningfully in the electoral process.”[19] In 2003, the SCC said that a meaningful role in the electoral process enables each citizen of Canada to have a “certain level of participation in the electoral process.”[20]

Ms. Aryeh-Bain argued that her right to meaningful participation in the electoral system was infringed because she could not vote, campaign, or advise others to campaign on her behalf on Shemini Atzeret. Mr. Walfish argued that his rights to campaign and vote were also infringed by his inability to campaign or vote on Shemini Atzeret or the other Jewish holidays during advanced polling. They both argued that their religious freedoms and equality rights guaranteed by the Charter were not being adequately considered, and the infringement of these rights should warrant moving the election date.

McDonald J ordered CEO Perrault to reconsider his decision not to move the election date, and to provide new reasons for his decision. She stated that there was an “absence of evidence of the CEO’s consideration of the Charter values at play” and instead the reasons he provided only focused on “operational or logistical concerns in changing the election date.”[21] She believed that he did not truly consider the option of moving the election date, even though it is available to him in the Elections Act to request a change. The Judge ruled that the Court could not defer to the administrative decision maker – the CEO – because he did not “provide any explicit or implicit evidence of proportionate Charter balancing.”[22] Thus, for procedural fairness to be given, CEO Perrault was required to reassess his decision and consider the Charter impacts of the election date on Ms. Aryeh-Bain, Mr. Walfish, and other observant Jews throughout Canada.

The CEO Gives His Reasons

On July 29, CEO Perrault responded with a decision – he had reconsidered the election date, decided not to advise that the date be moved, and provided reasons.

Perrault stated that he “carefully considered the impact of holding the election on October 21 on the ability of observant Jews to participate in the electoral process” and concluded that it was not in the interests of the Canadian public to advise that the date be moved.[23] Perrault says that he recognizes “that this situation engages [Aryeh-Bain and Walfish’s] Charter rights to freedom of religion, to equality, and to vote and to be qualified for membership in the House of Commons.”[24] However, long-standing preparations by Elections Canada, identification of polling locations, and a potential conflict with Nunavut municipal elections were the reasons for his decision to keep election day on October 21.[25]

Perrault noted that Elections Canada was engaging in campaigns to try and limit the impacts of the polling dates on Orthodox Jewish Canadians. Noting that significant Jewish population are only located in 36 of the 338 federal ridings, Elections Canada has devised “local solutions” in these 36 ridings. These include:

• Increasing staff at advanced polls in ridings where more than 1% of the population is Jewish;
• Require a community relations officer to work with local Jewish communities;
• Reaching out to local Jewish organizations, such as synagogues, to highlight voting options available on days that are not holidays;
• Hold meeting with candidates to provide them with information for alternate voting options;
• Increase frontline staff at Elections Canada returning offices to answer questions; and,
• Launch an information campaign designed to inform Jewish Canadians of different options to vote.[26]

CEO Perrault, however, noted that “there is no such thing as a perfect election day, especially in a country as diverse as Canada.”[27] With this, he decided that he would recommend keeping the election polling day on October 21, 2019.

Conclusion

Thus, it appears that the federal election date will go ahead as planned on October 21. The saga of the federal election, the Jewish holiday, and the court decision did create a public conversation about how to balance important civic events with deeply held religious conflicts. While it can be difficult to find a perfect time for an election in a country as diverse as Canada, it is important to try and include as many Canadians as possible. For this reason, there have been calls to amend the Elections Act in the future to move the fixed election date to a period with fewer religious conflicts, such as in June.[28] However, in 2019, Canada’s general election period will proceed through a period of Jewish religious significance. It remains to be seen how much of an impact this will have on candidates like Ms. Aryeh-Bain and voters like Mr. Walfish.

[1] Catharine Tunney, “Elections Canada recommends keeping Oct. 21 election date” (29 July 2019), online: Canadian Broadcasting Corporation <cbc.ca/news/politics/chief-electoral-election-date-orthodox-jewish-1.5228581>.

[2] Canadian Charter of Rights and Freedoms, ss 2(a), 3, 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[3] Ari L Goldman, Being Jewish: The Spiritual and Cultural Practice of Judaism Today (New York: Simon & Schuster, 2000) at 135-136.

[4] Ibid. This belief is derived from the biblical passage: “On the eighth day you shall hold a solemn gathering; you shall not work at your occupations” (Numbers 29:35).

[5] Aryeh-Bain v Canada (Attorney General), 2019 FC 964 at para 13 .

[6] Carla Naumberg, “Figuring out what Shemini Atzeret is. Finally” (28 September 2017), online: Jewish Standard <jewishstandard.timesofisrael.com/figuring-out-what-shemini-atzeret-is-finally/>.

[7] Aryeh-Bain, supra note 5 at para 8.

[8] Chief Electoral Officer of Canada, Decision of the Chief Electoral Officer: Date of General Election (29 July 2019), online (pdf): Election Canada <elections.ca/med/spe/decision2919_e.pdf> at 3 [CEO decision].

[9] Aryeh-Bain, supra note 5 at para 17.

[10] Ibid.

[11] Ibid at para 21.

[12] Canada Elections Act, SC 2000, c 9, s 56.1.

[13] Ibid, s 56.2.

[14] Heather MacIvor, “Chief Electoral Officer told to reconsider federal election date” (26 July 2019), online: The Lawyer’s Daily <thelawyersdaily.ca/articles/14025/chief-electoral-officer-told-to-reconsider-federal-election-date-heather-macivor?article_related_content=1> [MacIvor].

[15] Aryeh-Bain, supra note 5 at para 28.

[16] Ibid.

[17] Ibid.

[18] Ibid at para 36; Doré v Barreau du Québec, 2012 SCC 12 at para 54.

[19] Frank v Canada (Attorney General), 2019 SCC 1 at para 26; Figueroa v Canada (Attorney General), 2003 SCC 37 at paras 25-26.

[20] Ibid.

[21] Aryeh-Bain, supra note 5 at para 61.

[22] Ibid at para 63.

[23] CEO decision, supra note 8 at 1.

[24] Ibid at 3.

[25] Ibid at 5-7.

[26] Ibid at 9.

[27] Ibid at 10.

[28] MacIvor, supra note 14.

Introduction

Quebec has passed Bill 21, An Act Respecting the Laicity of the State (“the Act”) which bans some public sector workers from wearing religious symbols while on the job. The Act uses the notwithstanding clause of the Charter which means the Act remains in force despite potential Charter violations, of which there are at least a few.[1] However, section 28, the gender equality requirement of the Charter, which states that the rights guaranteed in the Charter must apply equally to men and women, may be the basis for a constitutional challenge to the Act. The notwithstanding clause does not apply to this section. While this section is not often used to challenge laws, the new Quebec law may provide an optimal opportunity to test its powers.

What is the Gender Equality Requirement?

Section 28, which for clarity sake, will be called the gender equality requirement, states: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons”.[2] Unlike section 15, the equality rights section of the Charter, the gender equality requirement only protects rights guaranteed in the Charter, not equality rights generally.[3]

To date, legal scholars have questioned the usefulness of this section.[4] It has not been used in any landmark gender equality cases. Gender equality rights are typically argued under the equality rights section (s 15) of the Charter.[5] However, constitutional legal scholar Peter Hogg suggests that the gender equality requirement is actually stronger than the equality rights section for two reasons:

- The notwithstanding clause does not apply to section 28;

- The government may not be able to justify a law under section 1, the justification clause, which would allow an act to remain in force even if there were a violation of gender equality rights if section 28 were to be invoked.[6]

The fact that the notwithstanding clause does not apply to the gender equality requirement was the result of a hard-fought movement by Canadian women as part of the patriation process for Canada’s Constitution.  Women lobbied to ensure their equality rights were properly reflected in the Charter. The initial successful fight was to ensure that both equality rights (s 15) and the gender equality requirement (s 28) were included in the Charter. However, at the end of negotiations, the notwithstanding clause had been applied to both those sections, making them powerless once the notwithstanding clause was used. Women then fought to have sections 15 and 28 removed from the reach of the notwithstanding clause. They were unsuccessful with section 15, but did successfully free section 28 from the notwithstanding clause.

The equality rights requirement, as it is written, may mean that even where a law is passed that uses the notwithstanding clause and therefore allows for the infringement of certain Charter rights, it may not be able to do so in a way that has a disproportionate effect on one gender.[7]

There is an argument that Quebec’s most recent use of the notwithstanding clause has a disproportionate effect against women. This would be a violation of the gender equality requirement.

What is An Act Respecting the Laicity of the State?

The Act

Quebec’s new Act is based on the desire to separate church and state.[8] The Act bans some public employees, including teachers, judges, and police officers from wearing religious symbols while on the job.[9] It also makes promotion impossible for those who continue to wear these symbols. Additionally, persons receiving public services must have their face uncovered when receiving the service.[10] For example, a Muslim woman wearing a niqab would have to remove the cloth covering her face to ride public transit.

The Act invokes the Charter’s notwithstanding clause which allows an Act to continue in force even if it infringes on certain Charter rights. These rights include fundamental freedoms, liberty rights, and equality rights.[11] In order to use this clause, the government must clearly state in the law itself that the law will operate despite its potential Charter violations. The power of the clause only lasts for five years. If the clause is not re-enacted after this period, the notwithstanding clause no longer applies to it.[12]

The Issues

The Act has received enormous backlash due to its impact on Charter rights. The Act likely infringes on individuals’ freedom of religion and their equality rights because the ability to freely practice religion, at least while in certain jobs, has been significantly impacted.

In terms of the limit on freedom of religion, the Act forbids individuals in a number of public service positions from wearing religious symbols, which, for many religions, is part of their religious practice. The Act could also violate equality rights on the basis of sex and religion, both protected grounds under the Charter, because it discriminates against people of specific religions who wear religious symbols, many of whom are women.  People who do not associate with any religion do not have to face the same hurdles to work in these positions.

The use of the notwithstanding clause means the Act remains in force despite the fact that it likely infringes on these Charter-protected rights.

The Gender Equality Requirement vs the Notwithstanding Clause

The gender equality requirement may be used to find the Act’s use of the notwithstanding clause to be unconstitutional. The notwithstanding clause will violate the gender equality requirement if it is found that, as a result of the clause, the Act applies disproportionately to one gender over the other – that the rights guaranteed in the Charter are not being applied equally to men and women.

There are strong arguments to be made that the use of the notwithstanding clause in the Act will allow discrimination against women, and more specifically, Muslim women. The population of Muslim people in Quebec, is much greater than it is for other religious populations such as Jews and Sikhs.[13] Muslim women are more affected by the Act due to the type of religious symbols they wear, such as niqabs, hijabs and burkas.

Legal scholar Kerri Froc argues the disproportionate effect of the Act is clear: "No one appears to be denying that Muslim women are disproportionately affected by Bill 21, regardless of fact that it applies to other religious clothing/symbols.  This is an unequal violation of s.2(a), over and above Bill 21's discriminatory purpose and effect."[14] As a result, more women than men will have to remove their religious symbols to work certain jobs or use public services.

The use of the notwithstanding clause is therefore allowing the violation of equality rights guaranteed in the Charter. Men will not face the discrimination Muslim women do when it comes to working and living in Quebec because of the use of the notwithstanding clause. The notwithstanding clause is therefore a violation of the gender equality requirement.

In the event the gender equality requirement renders the use of the notwithstanding clause unconstitutional, the Act would no longer be able to remain in force as a result of its infringement on Charter-protected freedom of religion and equality rights.

Conclusion

The time has likely come to use section 28 to challenge the use of the notwithstanding clause to override Charter infringements. Senator Marilou McPhedran presented this idea years ago when Quebec attempted to enact a similar law as part of their Charter of Values. She stated: “If the Parti Quebecois had passed its proper charter of values, which, among other things, prohibits the wearing of religious symbols in the performance of public duties, we may have seen a contest between section 33 and section 28.”[15]The exact same situation has arisen in 2019 and it may be the perfect time to test the power of section 28 to flex its muscle.

[1] Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 . The Act likely infringes on individuals’ freedom of religion under section 2(a) and gender and religious equality rights under section 15.

[2] Ibid, s 28.

[3] Marilou McPhedran, Judith Erola & Loren Braul, “’28 – Helluva Lot to Lose in 27 Days’: The Ad Hoc Committee and Women’s Constitutional Activism in the Era of Patriation” in Lois Harder & Steven Patte, eds, Patriation and Its Consequences – Constitution Making in Canada (Vancouver: UBC Press, 2015) 203 at 218.

[4] Ibid at 217.

[5] Department of Justice, “Section 28 – Gender equality rights” (17 June 2019), online: < https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art28.html>.

[6] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) at 55.17(c).

[7] Department of Justice, supra note 5.

[8] An Act respecting the Lacitie of the State, SQ 2019, c 12, Preamble.

[9] Ibid at s 6, Schedule II.

[10] Ibid at s 8.

[11] Supra note 1.

[12] Ibid at s 33(3)-(4).

[13] Kerri Froc, “Shouting into the Constitutional void” (24 June 2019), online (blog): Double Aspect < https://doubleaspect.blog/2019/06/24/shouting-into-the-constitutional-void/>.

[14] Kerri Froc, “No one appears to be denying that Muslim women are disproportionately affected by Bill 21, regardless of fact that it applies to other religious clothing/symbols.  This is an unequal violation of s.2(a), over and above Bill 21's discriminatory purpose and effect” (17 June 2019 at 9:30pm), online: Twitter <https://twitter.com/KerriFroc/status/1140824103365959680>.

[15] Supra note 3 at 219.

The freedom of religion is one of the fundamental freedoms protected by section 2 of the Canadian Charter of Rights and Freedoms.^[1]

What is the legal impact of having this freedom? In other words, what does it allow me to do and what government action does it protect me from?

According to the Supreme Court, the Charter-protected freedom means that no one in Canada can be forced by the government to act in a way that is contrary to his or her religious views.^[2] For example, the Supreme Court has determined that religious officials cannot be forced to perform same-sex marriages if doing so violates their religious beliefs.^[3] In practice, having the freedom of religion means a person is allowed to entertain whatever religious beliefs he or she chooses.^[4] Freedom of religion also allows a person to declare his or her religious beliefs “without fear of hindrance or reprisal,” and to worship, practice, and disseminate those beliefs.^[5]

The freedom of religion protects only “beliefs, convictions, and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held.”[6] What does the term “religion” mean in this legal context? “Religion,” according to the Supreme Court, “is about freely and deeply held personal convictions … connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment.”^[7] It often “involves a particular and comprehensive system of faith and worship” and “the belief in a divine, superhuman or controlling power.”^[8]

What religious conduct is legally protected from government interference? A ‘trivial or insubstantial’ effect on a person’s ability to practice his or her religion will not constitute a breech of this freedom.^[9] The freedom extends to protect against only non-trivial interference. Additionally, only practices that do not injure others are protected.^[10]

Beyond these thresholds, religious beliefs that are ‘sincerely held’ are protected from government infringement.^[11] Sincerity can be assessed many ways, for example, by examining the claimant’s demeanour, his or her prior religious experience, and the relationship between prior religious experience and the belief currently held.^[12] There is no objective inquiry into whether a belief conforms with established religious practice.^[13] The freedom of religion is not contingent on whether a religion is being practiced ‘correctly’.^[14]

Are their any limitations on the freedom of religion? While freedom of religion is a fundamental freedom, it is not absolute: this freedom is subject to  “reasonable limits” by the government as outlined in section 1of the Charter.^[15] For example, the Alberta Government was allowed to impose a universal photo requirement for drivers' licences even though this violated the religious freedom of Albertan Hutterites, whose religious beliefs prohibit them from having their photograph taken.^[16]

 Introduction

An old maxim has it that there are three things one should never discuss around the dinner table: sex, politics, and religion. In some way, the same holds true at Canada’s highest court. Though the Supreme Court of Canada hears many cases that touch on one or more of those topics, it is careful never to get too deep into the merits of any particular topic or position. With religion, it has traditionally expressed the opinion that the Charter should be interpreted broadly to cover all but the most extreme religious beliefs. This has saved the Supreme Court from being dragged into thorny and convoluted areas of debate such as which religions are ‘legitimate’?

However, the Supreme Court has recently been hearing increasingly complex cases involving religion – when it is engaged and what is considered a religious belief for example. As a result, it appears to be retreating from its previously non-interventionist position. In other words, the Supreme Court seems to be stepping beyond the role to which it had initially limited itself and growing less friendly to claimants with religious beliefs.

The Traditional Position

Religion has been a concern ever since the Charter came into force in 1982. Faced with claimants from many different religions and in all sorts of scenarios, the Supreme Court of Canada has had to define what exactly is meant by “religion.” The question this was to answer, of course, was what exactly should be protected by “freedom of religion” under section 2(a) of the Canadian Charter of Rights and Freedoms. It has been a tricky question for courts to answer, largely because of the variety of claims that come before them.

Courts have traditionally taken the approach that religion is best defined by the claimant, and not the court. The Supreme Court said as much in a 2004 case: “the State is in no position to be … the arbiter of religious dogma.”[1] The Supreme Court said that courts should avoid interpreting or determining the content of a person’s own understanding of religious rules, customs, or rituals. Determining religious disputes would “unjustifiably entangle the court in the affairs of religion.”[2] The focus should instead be on whether, more generally, the claimant has a sincere belief or practice. The claimant must either believe the belief or practice is mandatory or customary, or that it supports “a personal connection with the divine.”[3] For the Supreme Court, this reflected that the purpose of freedom of religion is to protect the ability of religious people to define themselves and to be spiritually fulfilled through connecting with the object of their faith—usually a divine being.

Since setting out this approach however, the Supreme Court appears to be moving away from a broader focus on the purpose of freedom of religion (connecting with the divine) towards a more rigid focus on actual beliefs and practices. Despite claiming not to be an “arbiter of religious dogma,” it has been inquiring more deeply into the beliefs of claimants. In recent cases, the Supreme Court has drawn lines between which religious practices are mandatory or not, and between religious practices and beliefs and the spiritual fulfilment they are meant to foster.

Obligatory vs. Voluntary Practices

The Supreme Court in the Amselem case made a point of saying that religious freedom protects both obligatory and voluntary expressions of faith.[4] Inquiring into whether a practice is mandatory is “inappropriate,” as it is the “spiritual essence” of the action that matters, and not whether or not it is perceived as mandatory.[5] Moreover, requiring a claimant to prove that they acted according to a “mandatory” doctrine of faith would mean that courts would be inappropriately interfering with profoundly personal beliefs.[6] Finally, the Supreme Court instructed that courts should avoid “interpreting” or “determining” the contents of a claimant’s personal understanding of a religious belief or practice, except to determine whether the claimant holds the belief sincerely.[7]

Recently, in the case of Law Society of British Columbia v Trinity Western University ,[8] the Supreme Court took another run at this idea and reached a seemingly contrary result. TWU featured a claimant who believed in the importance of studying law in an environment where other students acted according to his religious beliefs. After the Law Society of British Columbia denied the claimant the opportunity to have a law school that would have provided him this, the Supreme Court said that the effect of the denial on his religious freedom was minimal. This was because the mandatory covenant was not “absolutely required for the religious practice,”[9] and because studying law in a religious environment was “preferred (rather than necessary)” for spiritual growth.[10]

Both of these reasons seem to unnecessarily entangle courts in determining what is appropriate religious doctrine. To make these findings, a judge must step into the shoes of the religious claimant. The judge must determine whether the religious practice in question could still be followed without the mandatory covenant and whether the religious practice itself is mandatory. That is, they must decide whether choosing a different course of action would “allow the individual to stay true to his or her religious practices.”[11] In TWU, Chief Justice McLachlin, who wrote her own reasons disagreeing with a majority of the Supreme Court on this point, said that the majority rightly saw that an individual did not have to have their own law school to follow their own religious beliefs. She added, however, that without a law school, the individual would have to give up the expressive and community-centered aspects of the belief—both of which are protected by the Charter. The fact that some individuals may have been willing to do without a law school, therefore, did not mean that denying a law school was a minor infringement. Yet the majority’s careful and intrusive distinction between mandatory and merely “preferred” practices carried the day.

Beliefs vs. Practices

For the courts to find an infringement of religious freedom, the state action must “interfere with the individual’s ability to act in accordance with that practice or belief.”[12] Religious freedom protects more than the mere right to hold a belief. Rather, it protects the actions necessary to manifest those beliefs—the “accordance” between action and belief. As religion is about making a “personal connection with the divine,”[13] a broad interpretation of religious freedom protects that connection from state interference. However, the Supreme Court has more recently been recognizing and protecting the ability of claimants to hold a belief without enabling them to effectively manifest that belief or take action to demonstrate it. In cases such as TWU, this has been done by desacralizing religious activity—removing the spiritual or religious significance from an action that the claimant may see as sacred.

In TWU, the claimant believed in the importance of studying law at an institution where other students held the same values as him. His participation in that community of students would have “‘engender[ed] a personal connection with the divine’ over and above the connection achieved by his own personal adherence” to those values.[14] Faced with this belief, the Supreme Court essentially desacralized the mandatory covenant that manifested this belief. Instead of recognizing the spiritual significance of practicing religious values as a community, the Supreme Court characterized it as something that merely made it “easier” to practice those values individually, and thus had no spiritual significance of its own.[15]So, while the claimant was entitled to believe in the importance of living in community and to practice religious values, he was not entitled to study in a school with the mandatory covenant which would have joined practice with belief.

Another example comes from the Supreme Court’s decision in Ktunaxa Nation v British Columbia (Forest, Lands and Natural Resource Operations).[16] This case concerned a First Nation which sought to prevent a ski resort development in an area with spiritual significance to them. Their perspective was that the development would have driven Grizzly Bear Spirit from the area and impaired the First Nation’s religious practices. When deciding whether allowing the development would infringe the religious freedom of the First Nation, the Supreme Court cited a different test than the one it had previously used in Amselem. It asked merely whether the “decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief.”[17] It characterized the First Nation’s claim as trying to gain protection for Grizzly Bear Spirit itself.[18]

Here, as in TWU, the Supreme Court allowed the claimants’ beliefs to be desacralized. Allowing the ski resort development left the First Nation’s religious practices with no spiritual significance, as Grizzly Bear Spirit would have been driven from the area. Government action severed the connection between the First Nation’s practices and their idea of the “divine.” It also interfered with their ability to act in accordance with their beliefs, as their actions were no longer in accordance with the spiritual significance behind them. Again, the claimants were allowed to believe in Grizzly Bear Spirit’s presence and to continue their religious practices, but the Supreme Court declined to protect their right to actually connect with Grizzly Bear Spirit through their religious practices.

Conclusion

The Supreme Court seems increasingly willing to wade into religion and draw lines between concepts and ideas which were previously left alone. This means that claimants with religious beliefs may have a tougher time convincing a court that their particular beliefs should be protected by the Charter and that those beliefs have been infringed in any given case. TWU and Ktunaxa provide two examples where this was the case, and hint that courts may take similar approaches in future cases.

TWU, for example, has already been cited in an Alberta decision with similar reasoning. Alberta requires that schools allow for the establishment of Gay-Straight Alliances and to state in their policies that they will not discriminate against employees or students. Several religious-based Independent Schools are challenging this legislation based on Charter guarantees of freedom of religion, expression, and association. The schools applied for a temporary injunction which would have prevented the law from operating until the Court could hold a full hearing. In response to the Independent Schools’ argument, the Court cited a long passage from TWU, after which it refused to give an injunction.[19] Similar to TWU, the Court ignored the expressive and community-centred elements of the religious belief and merely pointed out that the legislation at issue did not force the schools to “forsake their religious principles or teachings.”[20] Similar reasoning may apply to future litigation over Canada’s Summer Jobs Program.

Ktunaxa may have a particular impact for Indigenous groups with religious freedom claims. The religious claim in Ktunaxa was based on the First Nation’s connection with the land—a connection that is a feature of many Indigenous beliefs.[21] Many have criticized the Supreme Court’s decision in Ktunaxa for focusing too narrowly on beliefs and not recognizing the complexity of religious experience, which often involves physical and community aspects, and not just private beliefs.[22] This would apply not only to Indigenous groups, but also other religions that feature connections with physical objects and lands held to be sacred, such as Islam.[23] As a result, and disturbingly, the religious freedom of Indigenous and other non-Western belief systems could be less protected by the Charter than those with which the courts are more familiar.

[1] Syndicat Northcrest v Amselem, 2004 SCC 47 at para 50, [2004] 2 SCR 551.

[2] Ibid.

[3] Ibid at para 56.

[4] Ibid at para 47.

[5] Ibid.

[6] Ibid at para 49.

[7] Ibid at para 50.

[8] 2018 SCC 32 .

[9] Ibid at para 87

[10] Ibid at para 88.

[11] Ibid at para 132.

[12] Amselem, supra note 1 at para 65.

[13] Ibid at para 56.

[14] Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 at para 92.

[15] TWU, supra note 8 at para 89.

[16] 2017 SCC 54, [2017] 2 SCR 386 .

[17] Ibid at para 70.

[18] Ibid.

[19] PT v Alberta, 2018 ABQB 496 at paras 48-49.

[20] Ibid at para 49.

[21] Sarah Morales, “Religious Freedom of Indigenous Canadians” in Dwight Neman, ed, Religious Freedom and Communities (Toronto: LexisNexis, 2016) 287 at 297.

[22] See, e.g. Nicholas Shrubsole, “A recent ruling on religious freedom shows the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter” (13 November 2017), online: Policy Options < http://policyoptions.irpp.org/magazines/november-2017/the-impossibility-of-indigenous-religious-freedom/> [https://perma.cc/LR9A-89KX].

[23] Avnish Nanda, “This is an absolutely terrible decision by the Court that fails to recognize diverse forms of faith in Canada https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do …” (2 November 2017 at 10:03), online: Twitter <https://twitter.com/avnishnanda/status/926132607036903424> [https://perma.cc/BGT2-WUPJ].

This article was written by a law student for the general public.
Updated: May 31, 2017

33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

What is the Notwithstanding Clause?

Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause”.[1] Provincial or federal governments can use section 33 when they want to protect a law that violates fundamental freedoms, legal rights, or equality rights. The clause is an acknowledgement that there can be situations where a government will want to pass a law, or maintain an existing law, that disregards Charter-protected rights or freedoms.

Why do we have a notwithstanding clause?

When the Charter was drafted, federal and provincial lawmakers were divided on including section 33 in the Charter.[2] Its supporters believed the clause would protect democracy by giving elected law-makers control over important issues and preventing the unelected judges from having too much power. Those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could jeopardize the Charter’s purpose of protecting individual rights against the government.[3]

Supporters included provinces such as Alberta, Saskatchewan, and Manitoba, who were worried the Charter would limit their power to make necessary laws. Having section 33 in the Charter preserved provincial sovereignty.[4]  Including the notwithstanding clause secured these provinces’ support of the Charter.

When can it be used?

The notwithstanding clause is rarely used, and only when the government has powerful public policy reasons to justify it.[5] The clause can only be used for laws that affect fundamental freedoms in section 2 of the Charter, such as freedom of expression or freedom of religion, legal rights in sections 7-14 such as the right to life, liberty and security, and equality rights in section 15.[6]

For example, in 2000, Alberta tried to apply the clause to override same-sex marriage in the province. The Supreme Court had ruled that same-sex marriage was constitutional but the Alberta government did not want to follow this decision. Therefore, they added the notwithstanding clause to the Alberta Marriage Act to make it clear that marriage was only legal between a man and a woman. However, this use of the notwithstanding clause was found invalid because marriage is not in provincial jurisdiction.[7] Only the federal government can decide what marriages are legal.

How can it be used?

When a government decides to use the notwithstanding clause it must clearly state that its law will operate despite its potential to violate sections of the Charter.

The use of the notwithstanding power can only last for five years, after which it can be renewed for additional five-year periods.[8]  A practical effect of the five-year limit is that it generally coincides with the length of electoral terms. As a result, the public has an opportunity in an election to challenge their government’s decision to use the notwithstanding clause if they so wish.[9]

When has it been used?

As of May 2017, the notwithstanding clause has been used 17 times by the governments of Quebec, Alberta, Saskatchewan, and the Yukon.[10] Here are a few examples:

 Quebec

• Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time.[11] The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.[12]
• In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression because companies could not express themselves in their language of choice. Quebec passed a new version of the same law with the notwithstanding clause attached. This new law allowed the French-only signs to continue. The law was not renewed when the five-year limit ran out.

Saskatchewan

• Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.[13]
• In 2017, Saskatchewan Premier Brad Wall announced his decision to use the notwithstanding clause to protect school choices for students and parents, regardless of their faith.[14] The Premier’s announcement was in response to a Saskatchewan court decision that would possibly jeopardize the funding for non-Catholic students who attend Catholic schools. Using the notwithstanding clause will allow the province to continue funding students regardless of their faith and school choice. The Ministries of Education and Justice are tasked with drafting the new law.[15] The court’s decision is currently on appeal.

Alberta

• In 1998, Alberta tried to use the clause to limit compensation to victims of a forced sterilization program. Forced sterilization had infringed the victims’ right to life, liberty and security of the person. However, the proposed bill was withdrawn due to public protest against it.[16]
• As mentioned earlier, Alberta also tried in 2000 to apply the notwithstanding clause to override same-sex marriage in the province.

For more information:

• Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991), (1998) Points of View no 6.
• Allan E. Blakeney, “The Notwithstanding Clause, the Charter and Canada’s Patriated Constitution: What I Thought We Were Doing” (2010) 19:1, 2 & 3 Const Forum Const 1.

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 33 .

[2] Peter W Hogg, Constitutional Law of Canada, vol 2, 5^th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 39.2. [Hogg].

[3] Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991) at 4.

[4]  Ibid at 2; Barbara Billingsley, “Section 33: The Charter’s Sleeping Giant” (2002) 21 Windsor YB Access Just 311 at 333; Hogg, supra note 2 at 39.2.

[5] Hogg, supra note 2 at 39.8.

[6] Charter, supra note 1, s 33(1).

[7] Hogg, supra note 2 at 39.2.

[8] Charter, supra note 1, ss 33(3)– (5).

[9]  Hogg, supra note 2 at 39.5.

[10]  Billingsley, supra note 4 at 339.

[11]  Hogg, supra note 2 at 39.1.

[12]  Ibid.

[13] RWDSU v Saskatchewan, [1987] 1 SCR 460.

[14] Stefani Langenegger, “Sask. to use notwithstanding clause to override Catholic school ruling”, CBC News (01 May, 2017), online: <www.cbc.ca/news/canada/saskatchewan/sask-notwithstanding-catholic-1.4093835>

[15] Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212 and The Government of Saskatchewan, 2017 SKQB 109.

[16] Billingsley, supra note 4 at 341.

Introduction

David and Collet Stephan were convicted in April 2016 of failing to provide the necessaries of life (Criminal Codes 215(2)(b)) to their son Ezekiel, who died of meningitis in March 2012.[1]

A family friend and nurse had suggested to the Stephans that Ezekiel was presenting with symptoms of meningitis and that he should see a doctor.[2] After conducting some research on the internet, the Stephans concluded that Ezekiel likely had viral meningitis, and not the more serious bacterial variation of the disease.[3] They decided to treat Ezekiel  with olive leaf extract, garlic, echinacea and various other natural supplements rather than taking him to a medical doctor.[4]

The Crown’s theory was that the Stephans’ opposition to Western medicine made them unwilling to access appropriate medical care when Ezekiel’s life was in danger.[5] The Stephans deny this accusation. They claimed that Ezekiel did not appear to be in need of medical care until the period immediately before his death at which time they sought emergency medical assistance.[6]

After the Stephans lost their initial appeal to the Alberta Court of Appeal, David Stephan posted on Facebook that his conviction set a dangerous precedent for parents in Canada – if they did not parent as the government saw fit, then they could face criminal prosecution.[7]

What rights do parents have when it comes to making critical medical decisions for their children who are too young to make decisions for themselves?

Balancing Rights

Case law has always recognized that parents can and should make decisions for their children. They are presumed to be in the best position to make decisions in their child’s best interests.[8] Parent do not, however own their child. A child is an individual with rights.[9]

In the case B (R) v Children's Aid Society of Metropolitan Toronto involving the right of a parent to refuse a life-saving blood transfusion for their infant child, the Supreme Court of Canada said that choosing medical treatments for one’s child is a “fundamental aspect” of freedom of religion.[10] However, the Court also said, like all rights in the Charter, freedom of religion is not absolute.

Section 2(a) of the Charter protects freedom of conscience and religion. The purpose of this section is to “prevent interference with profoundly held personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being .”[11] A belief based on conscience receives equal protection to religious beliefs.[12]

Freedom of religion has been litigated extensively, while conscience has received relatively little attention. For this reason, the cases referenced in this article deal primarily with religion, however, these decisions regarding religion would, in all likelihood, be applicable to conscience as well.

While one is free to hold any religious belief, religious practices following from such beliefs that “impact on the fundamental rights and freedoms of others” can be restricted.[13] Children have the right to life, liberty, and security of person under section 7 of the Charter. The section 2(a) rights of the parent are not allowed to override these. [14]

The government has parens patriae jurisdiction – the government is the protector of its citizens. Based on this principle, the state may intervene to protect children when their lives are in jeopardy and to protect their well-being.[15]

Failing to Provide “the Necessaries of Life”

The offence that the Stephans were charged with was failing to provide the necessaries of life.[16] This is a criminal negligence offence. Parents are duty-bound to provide the necessaries of life to their children under the age of 16.[17] “Necessaries of life” are those things that “tend to preserve life.”[18]

If the parent makes a marked departure from the level of care that a reasonable person would provide to a child, then they are criminally negligent.[19] This standard does not equate with simply differences in parenting styles. The Crown must show that the parent had “wanton or reckless disregard for the lives or safety of,” the child.[20]

While David Stephan made statements that the offence he was convicted of infringed on his rights to parent his children, this was not the argument that he made in his appeal to the Supreme Court.[21] The standard of “wanton or reckless disregard for the lives or safety of” is clearly connected to the right of the child to life, which is protected by section 7 of the Charter. In the precedent setting B (R) v Children's Aid Society of Metropolitan Toronto case, the court observed that the right of a parent to make choices about the medical care of their children, in accordance with their section 2(a) right to conscience and religion, cannot infringe on the child’s right to life.[22] The offence of failing to provide the necessaries of life, then, may be a violation of the parent’s rights to freedom of religion and conscience, but it is a justifiable violation.[23]

Conclusion

When it comes to making choices that put a child’s life in danger, the section 2(a) rights to freedom of conscience and religion of the parent do not override the section 7 rights of the child to life, liberty, and security of person.

Cases of refusing medical treatment become more complicated when the child is mature enough to understand the choice being made – in these cases the best interests of the child are weighed against the child’s maturity level and ability to make an independent choice.[24]

[1] R v Stephan, 2016 ABQB 319 at paras 1, 33, 44, 2016 ABQB 319 (CanLII).

In May 2018, the Supreme Court of Canada ordered a new trial for David and Collet Stephan because the instructions given to the jury by the judge at the original trial were not clear enough.

[2] R v Stephan, 2016 ABQB 319 at para 21, ABQB 319 (CanLII).

[3] R v Stephan, 2016 ABQB 319 at paras 21, 43, 2016 ABQB 319 (CanLII). Justice RA Jerke described the difference between viral and bacterial meningitis as follows: “Untreated bacterial meningitis is fatal. It is therefore more dangerous than viral meningitis, but viral meningitis is also very serious. For example, it can cause a person to stop breathing. Viral meningitis is potentially fatal although far less often than bacterial meningitis,” (para 43).

[4] R v Stephan, 2016 ABQB 319 at para 22, 2016 ABQB 319 (CanLII).

[5] R. v. Stephan, 2018 SCC 21 at para 35, 2018 SCC 21 (CanLII).

[6] R v Stephan, supra note 4. See also Lucie Edwardson, “Parents convicted in son’s meningitis death relying on judge’s ‘failed’ jury charge in Supreme Court appeal,” CBC News (15 May 2018) online: < https://www.cbc.ca/news/canada/calgary/collet-david-stephan-supreme-court-canada-appeal-1.4662783>.

[7] Meghan Grant, “’No room for justice’: David Stephan posts tirade after conviction upheld in son’s meningitis death,” CBC News (16 November 2017), online: < https://www.cbc.ca/news/canada/calgary/david-collet-stephan-meningitis-death-son-failure-provide-necessaries-facebook-1.4404690>.

[8] B (R) v Children's Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 at para 85, 122 DLR (4th) 1 .

[9] BR, supra note 8, at para 85

[10] BR, supra note 8 at para 105.

[11] “Paragraph 2(a) – Freedom of religion,” in Government of Canada, Charterpedia (last updated 28 June 2018), online: < http://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2a.html>. See R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at 759, 35 DLR (4^th) 1; R. v. Big M Drug Mart Ltd, [1985] 1 SCR. 295 at 346, 18 DLR (4^th) 321; Syndicat Northcrest v. Amselem, [2004] 2 SCR 551 at para 41, 241 DLR (4^th) 1; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 32, [2009] 2 SCR 567 .

[12] Hutterian Brethren, supra note 11 at para 90; Mouvement laïque québecois v. Saguenay (City), [2015] 2 SCR. 3 at para 70.

[13] BR, supra note 8 at para 107.

[14] BR, supra note 8 at para 113.

[15] BR, supra note 8 at para 88

[16] Criminal Code, RCC 1985, c-C-46, s 215(1).

[17] Criminal Code, RCC 1985, c-C-46, s 215(1); see also R v Stephan, 2016 ABQB 319 at para 5, 2016 ABQB 319 (CanLII).

[18] See R v Brooks (1902), 5 CCC 372 (BCCA)

[19] R v Stephan, 2016 ABQB 319 at para 37, 2016 ABQB 319 (CanLII).

[20] Criminal Code, RCC 1985, c-C-46, s 219(1).

[21] R v Stephan, 2018 SCC 21 (Factum of the Appellant).

[22] BR, supra note 8.

[23] BR, supra note 8 at paras 112-113.

[24] A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181. See also: The Canadian Medical Protection Association, “Can a child provide consent?,” Duties and responsibilities: Expectations of physicians in practice, (published March 2014, revised June 2016), online: <https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2014/can-a-child-provide-consent>.

Islam has had its share of media attention over the past half century. Recently, the discussion has made its way into the soccer field and other sports arenas. Occasions of teary-eyed young girls being removed from soccer games or other sports because they wear the hijab, or religious head covering, during play have prompted many discussions about the nature of Canadian tolerance and respect for minorities, with a specific focus on Muslim women.

In February of 2007, an 11-year old girl was removed from a soccer tournament in Quebec for wearing her hijab; in November, 2007, a player was ejected from an under-16 soccer match in Calgary for the same reason; in the same month, a Winnipeg girl was banned from a judo tournament also for wearing the head covering. The sports associations maintain that their primary concern is the safety of the players, and that it is not a religious issue. In any case, religious sentiments remain the central issue for the athletes involved.

In Quebec, the question of religious garb expanded past the sports arena when, on December 11, 2007, a large trade union federation called for a "charter of secularism" that would ban the head scarf for teachers and court judges. At the same time, Gilles Duceppe of the Bloc Quebecois commented that "reasonable accommodations of religious minorities become unreasonable if they prevent integration." He suggested that the Quebec Charter of Rights and Freedoms respects the secularity of the state as a basic principle. Any accommodation of cultural variance must be consistent with this basic principle. The potential tension with the Canadian Charter of Rights and Freedoms is clear, considering the expansive interpretation that the courts have given to the freedom of religion. (See Freedom of Religion.)

Sources:

• Jeff Heinrich, "Bloc Urges Limits on Non-Catholic Religious Displays" CanWest News Service (December 11, 2007).
• Jeff Heinrich "Quebec Union Wants a Charter to Ban Religious Garb" CanWest News Service (December 11, 2007).
• "Family Demands Apology After Girl With Headscarf Eject From Game" Edmonton Journal (November 26, 2007).
• "Interim Alberta Soccer Ruling Bans Hijab" CBC News (December 1, 2007).
• "Winnipeg Girl Banned From Judo Tournament For Wearing Headscarf" CBC News (November 19, 2007).
• Katie Rook, Amy Smithers, "Secular, Religious Demands Create Cultural Chameleons" Edmonton Journal (December 12, 2007).