With mandatory vaccination policies (some of which are not exactly mandatory because they provide alternatives), those opposed to vaccines have been claiming religious exemptions. When people are dismissive of these claims, others immediately respond, “But what about Amselem?”, the Supreme Court of Canada decision that seems to allow a highly subjective determination of legitimate religious belief. But what does Amselem actually say and how does it relate to anti-vaccination claims based on section 2(a) of the Canadian Charter of Rights and Freedoms.
Although they may be difficult to assess, the limits Amselem impose even in determining whether the claim passes muster under the first stage of the Charter analysis can serve to make it difficult to bring fraudulent claims.
Furthermore, notwithstanding Amselem‘s giving extremely wide scope to freedom of religion claims (and in doing so, it is not really departing from prior Charter jurisprudence), it gives little guidance on how to place those claims within a broader social context. That the whole purpose of vaccination requirements is to address an issue of significant social concern limits the application of Amselem, once the first stage of Charter analysis has been completed.
Many mandatory vaccination policies have specified they are subject to medical and religious exemptions. Others have been more circumspect, allowing exemptions based on “human rights” without specifying which rights. However, both successful medical and religious claims should be rare. These can be brought, depending on the circumstances, under human rights legislation or the Charter. Here I concentrate on religious claims under the Charter. The Charter applies only to government actors or those with a nexus with government. Nevertheless, a challenge to legislation allowing or permitting mandatory vaccination requirements under the Charter may affect the capacity of private actors relying on that legislation to impose vaccination requirements.
(In passing, I note human rights commissions have stated explicitly that while genuine religious claims can infringe the legislation and possibly require accommodation, personal preferences or “a singular belief” does not fall within human rights religious protection: see, for example, here.)
Few organized religions include opposition to Covid-19 vaccines or to having a vaccination and they do not include the major religions (see a list here, for example). Under Amselem, this will not be determinative of a claim.
FREEDOM OF RELIGION UNDER AMSELEM
Concern that it might be difficult to defend claims based on purported religious belief stems from the liberal or expansive definition the majority gives to religious belief in Amselem. The claimants brought their claim under Quebec’s Charter of Human Rights and Freedoms, but the Supreme Court stated that its analysis also applied under the Canadian Charter (Amselem, para. 37). While this is true for the first part of the analysis, the majority’s consideration of interests co-existing with the claimants’ religious rights relies primarily on the identification of those interests under Quebec’s Charter and Civil Code.
Briefly, the Orthodox Jewish co-owners of unitS in a condominium set up succahs on their balconies, meant for their exclusive use, against the condominium’s bylaw in the declaration of co-ownership prohibiting constructions on the balconies. The claimants argued that they were required to create the succahs in furtherance of their religious beliefs relating to Succot and that they could fulfil their religious obligations only by individual succahs. In response, the condominium board maintained the claimants had given up their right to express their religious views this way by signing the declaration of co-ownership; they also suggested a communal succah on the condominium grounds (Amselem, para. 13). The claimants rejected this proposal because it would create hardship in following the requirements of Succot and would be “contrary to their personal religious beliefs”.
Justice Iacobucci wrote the majority decision (for himself and four other judges). Justice Bastarache wrote in dissent for himself and two other judges and Binnie J. also dissented (the latter on the basis of contract, which I do not consider here).
The freedom to express and thus make claims based on one’s own — indeed, “singular” — religious beliefs appears boundless in light of how Iacobucci J. defines the right, untethered from recognized precepts. Citing earlier Supreme Court of Canada decisions which emphasized “an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom”, he wrote the following fateful words:
The emphasis then is on personal choice of religious beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make…. (Amselem, para. 43; citation omitted).
Also see Amselem, para. 46, where Iacobucci J. summarized the majority’s view as follows: section 2(a) guarantees “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 or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.”
Accordingly, it is “inappropriate” to require expert opinion about the validity of the claimant’s beliefs (Amselem, para. 54) This does not mean a party cannot adduce expert testimony should it choose to do so and, indeed, Iacobucci J. finds certain expert testimony helpful in bolstering the claimants’ case (Amselem, para. 73).
Yet even this scopius treatment of religious rights and the meaning of religion is not unlimited. The first limit allowing the court to scrutinize the belief may be crucial for challenges to vaccinations. Notably, the court may assess the sincerity of the belief, although this exercise “is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice”. The court may consider the current claim in the context of other present practices. One limitation on this limitation is that “the court should be concerned only with the individual’s current belief, not with whether it is consistent with beliefs or actions in the past”. (Amselem, paras. 52 and 53).
Furthermore, the infringement must be “non-trivial” (Amselem, para. 58). It is unlikely that in itself requiring someone with a sincere religious belief in opposition to Covid-19 vaccines to get a vaccination would be considered “trivial”.
At the same time, religious rights do exist in a larger environment. In fact, Iacobucci J. began his reasons by emphasizing that rights are not absolute:
…[R]espect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy. But respect for religious minorities is not a stand-alone absolute right; like other rights, freedom of religion exists in a matrix of other correspondingly important rights that attach to individuals. Respect for minority rights must also coexist alongside societal values that are central to the make-up and functioning of a free and democratic society. (Amselem, para. 1)
And perhaps more significantly, even if an individual has been able to make out a case of religious freedom and a substantial degree of infringement,
they will still have to consider how the exercise of their right impacts upon the rights of others in the context of the competing rights of private individuals. Conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises. (Amselem, para. 62)
In Amselem, Iacobucci J. does not view the rights claimed by the condominium organization (and thus the other co-owners) are as significant as the freedom of religion claim. He finds “the appellants’ rights to freedom of religion significantly impaired, [whereas] on the facts of this case the impact on the respondent’s rights at issue is, at best, minimal and thus cannot be construed as validly limiting the exercise of the appellants’ religious freedom.” (Amselem, para. 64).
The respondents’ rights in Amselem included the appearance of the property, which Iacobucci J. more or less dismissed out of hand, and security because of blocking of emergency routes, which could be addressed. These concerns are very different from the concerns about a pandemic and the impact of unvaccinated individuals both on vaccinated individuals and on the health care system.
Justice Iacobucci undertook his assessment of the factors raised by the respondents under the Quebec Charter) and Civil Code and it is therefore not particularly helpful in understanding the application of Amselem to the current issue. He did not believe that the grounds the condominium raised warranted consideration under section 1 of the Charter.
I mention Bastarache J.’s dissent briefly because it disagrees with the majority’s view in a fundamental way. In his view, personal beliefs must be related or linked to religious precepts (Amselem, para. 135). There are two aspects to freedom of religion, one’s personal beliefs and how the manifestation of those beliefs affects others; this second aspect “has genuine social significance and involves a relationship with others” (Amselem, para. 137). This should not be taken too far, however: “It is important that a believer’s religious practices not be limited to those of the majority or of an entire community, or to those that are considered to be generally accepted. Still, it is the person relying on a religious precept to establish the mandatory nature of his or her religious practice who must prove that the precept exists” (Amselem, para. 138).
Thus a claimant must show that the belief is founded on a religious precept and also that it is held sincerely: the precept might not create an obligation, but the claimant must sincerely believe that it does (Amselem, para. 141). This, of course, may be an issue when those speaking for organized religion are not clear about whether vaccinations are an obligation or are merely permissible (or not prohibited).
After analyzing the respondents’ arguments under the rights and justificatory provisions of the Quebec Charter (and the Quebec Civil Code) Bastarache J. concluded the restriction did not infringe the claimants’ freedom of religion.
It is also worth noting that Iaobucci J. himself has held that certain religious beliefs do not satisfy this first stage analysis, that is, that certain beliefs are not protected by the section 2(a) guarantee. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto (B.(R.)), he had joined three other judges in holding that “‘Freedom of religion’ should not encompass activity that so categorically negates the ‘freedom of conscience’ of another”. (B.(R.), p.437) They found support in Dickson J.’s comment at p. 436 of Big M Drug Mart Ltd. that while individuals may believe as they wish, the limitation on manifesting those beliefs is they “do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own”.
An overview of some cases since Amselem highlights aspects of Amselem and indicates that freedom of religion challenges may be more complicated than the majority’s consideration in Amselem suggests.
R. v. N.S. (“N.S.“) is helpful in identifying factors relevant to the sincerity of the belief. A witness in a criminal trial wore a niqab. However, the trial judge prohibited her from doing so when she testified. N.S.’s religious rights and the right of the accused to a fair trial were at issue.
The four-judge majority (out of seven) held that the preliminary inquiry judge did not conduct a satisfactory inquiry into N.S.’s sincerity. Because “N.S. removed the niqab for her driver’s licence photo and said she would do so for a security check”, the judge found her belief that she wear it in the court was not “sufficiently ‘strong'” (N.S., para. 12):
inconsistent adherence to a religious practice may suggest lack of sincere belief, but it does not necessarily do so. A sincere believer may occasionally lapse, her beliefs may change over time or her belief may permit exceptions to the practice in particular situations. Departures from the practice in the past should also be viewed in context; a witness should not be denied the right to raise s. 2(a) merely because she has made what seemed to be a compromise in the past in order to participate in some facet of society. (N.S., para. 13)
The majority also provides guidance with respect to determining “the impact of failing to protect that sincere belief in the particular context.”
It is difficult to measure the value of adherence to religious conviction, or the injury caused by being required to depart from it. The value of adherence does not depend on whether a religious practice is a voluntary expression of faith or a mandatory obligation under religious doctrine: Amselem, at para. 47. However, certain considerations may be helpful. How important is the practice to the claimant? What is the degree of state interference with the religious practice? (See Alberta v. Hutterian Brethren of Wilson Colony….) [In the specific context of wearing the niqab in the courtroom,] [h]ow does the actual situation in the courtroom — the people present and any measures that can be put in place to limit facial exposure — affect the harm to the claimant of limiting her religious practice? (N.S., para. 36; citation omitted)
There may also be “broader societal harms”; in this case, for example, a woman who wears a niqab may be reluctant to report sexual assault. These are some of the deleterious effects of requiring a woman to remove the niqab, but they must be assessed against the benefits to the fairness of the trial. Are there broader social harms to requiring vaccinations with consequences for refusing?
The majority also notes, “the Canadian approach in the last 60 years to potential conflicts between freedom of religion and other values has been to respect the individual’s religious belief and accommodate it if at all possible”. Furthermore (citing Amselem, among other decisions), “[t]he need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law. For over half a century this tradition has served us well. To depart from it would set the law down a new road, with unknown twists and turns.” (N.S., para. 54).
Section 2(a) of the Charter is concerned with “whether state action has interfered with the ability of a person to act in accordance with his or her religious beliefs or practices” (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) [“Ktunaxa Nation“], para. 124, partial dissent ). Another aspect is the ability of an individual’s ability to pass on beliefs to future generations (Ktunaxa Nation, para. 125, partial dissent).
It has also been held that individuals and communities that hold certain beliefs can continue to hold those beliefs and can continue to act on them even if the connection of those beliefs to “the divine” no longer permits spiritual fulfilment. In Ktunaxa Nation, the majority held that development in the area, even if it would drive the Grizzly Bear Spirit from Qat’muk, would not interfere with the Ktunaxa Nation’s belief in the Grizzly Bear Spirit or to manifest that belief.
Although the Supreme Court has postulated that where rights can be reconciled, there may not be a need to conduct a section 1 analysis (as was the case in Amselem). Even where rights other than those claimed do not exist and therefore there is not a need for reconciliation, the court will normally undertake a section 1 analysis. Freedom of religion is not absolute and may still have to be balanced with other rights under section 1 of the Charter. (Multani v. Commission scolaire Marguerite-Bourgeoys [“Multani“], paras. 28 and 30). In that case, the objective was the security and safety of schools; however, the majority held that a total prohibition against wearing a kirpan did not satisfy section 1:
A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. On the other hand, accommodating Gurbaj Singh and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. (Multani, para. 79)
In a different case, society’s interest in achieving a particular objective outweighed the importance of a religious belief: Alberta v. Hutterian Brethren of Wilson Colony (“Hutterian Brethren“). Alberta driver’s licences require a photograph. At one time, the province permitted an exemption for persons whose religious beliefs included an objection to having their photograph taken; however, the province removed it.. The Hutterite Brethren brought a claim under the Charter‘s guarantee of freedom of religion. The province proposed the issuance of a licence without a photograph, but the Hutterian Brethren would still have to have their photographs taken to be placed in a central bank and they rejected the proposal.
There was no dispute that the requirement offended the section 2(a) guarantee, even though apparently there was no actual evidence that the taking of the photograph was “’capable of interfering with religious belief or practice’” (Hutterian Brethren, para. 34).
The majority explained at paragraph 36 of Hutterian Brethren,
Freedom of religion presents a particular challenge in this respect because of the broad scope of the Charter guarantee. Much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held religious belief. Giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs, including the attempt to reduce abuse of driver’s licences at issue here, to the overall detriment of the community.
The issue is whether the government has chosen its policy from among a range of reasonable alternatives and in Hutterian Brethern, it had. Part of the analysis is whether the government has selected an approach that minimally impairs the right, “whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner”, one that “includes alternative measures that give sufficient protection, in all the circumstances, to the government’s goal” (Hutterian Brethern, para. 55).
Where do Amselem and other cases, including but not only those discussed briefly here, leave claims for religious exemptions from mandatory vaccination requirements?
The assessment at the first stage is likely to be focused on whether the belief is sincere. Although few religions are opposed to vaccinations and some promote them as an obligation, organized religious precepts will not prevent an individual from claiming their own belief. And under Amselem, it does not seem to matter how recent an individual’s conversion to opposition to vaccinations may be, the bigger question is likely the extent to which the opposition is consistent with other behaviour in the present. If the belief is sincere, a court would find a requirement for a vaccination to be non-trivial.
One must assume that generally, the inquiry will quickly proceed to section 1. At that point, the role of Amselem effectively ends; even that case recognizes that freedom of religion is not absolute. Of all the cases I referred to, including Amselem, the government’s objective in the current situation is the most substantive and significant: the turning of the Covid-19 pandemic into at best, an endemic susceptible to control, in order to promote both the health of the population and the functioning of the economy. Vaccines have proven to be the best vehicle for achieving that, except for the unwillingness of too many people still to reject them. Because of the opposition to them, vaccines are inadequate and must be accompanied with other protections, such as masks.
The biggest challenge for government may be whether there are less minimally impairing alternatives that would permit objections on the basis of religion. Some programs include alternatives, such as regular testing, but some (such as employer requirements of vaccine or termination, subject to human rights provisions) do not. One senses that regular testing is like a sieve; it is not preventive, but merely provides information after the fact when someone who has tested positive might already have transmitted the virus. And, if the experience of education programs for parents refusing to have their children vaccinated to attend school is any evidence, substituting an education program instead of a Covid-19 vaccination is not likely to produce many converts.
Amselem‘s almost (but not quite) unbounded definition of freedom of religion invites religious challenges, legitimate and otherwise, to mandatory vaccinations. But the decision’s significance does not end there. It is crucial to read the majority’s definition of the guarantee in a larger context. The decision also makes clear that religious claims must satisfy their relationship with and impact on broader societal objectives. Other decisions provide guidance on how to assess this relationship. The courts must answer two questions beyond Amselem: to what extent do individual religious exemptions undermine the government’s objective in bringing an “end” to the pandemic? To what extent do individual religious exemptions threaten the security of the majority of society’s members? And can alternatives respond adequately to an unacceptable number of objectors?