An Inevitable “Marriage March”? A Survey of the “Arbiter of Religious Dogma” in Canadian Case Law

Abstract

French

“Arbiter of religious dogma,” first expressed by the Supreme Court of Canada in Syndicat Northcrest v. Amselem ([2004] 2 SCR 551), has had a lasting and pervasive effect on the Canadian lawscape. Developed in an effort to remove the State (and therefore Court apparatus) from a decision-making capacity in questions related to religious doctrine, this expression has become an inevitable mantra when discussing issues related to religion in Canada. This article argues, however, that the presence of this expression should not be understood as the end of a conversation, but rather, the beginning of a novel one on the legitimacy of religion in law. Through discourse analysis, this article will endeavor to suggest that this “marriage march” between law and religion is inevitable in the Canadian context.

Keywords

freedom of religion Canada arbiter of religious dogma discourse analysis judicial decision-making religion

Introduction

“The human company draws close

And lends an ear

The vows that break the world are spoke

As the whole world sheds a tear”

Leonard Cohen, “The Marriage March”

(Night Magic, 1985)

In the lyrics to Leonard Cohen’s song “The Marriage March,”¹ reference is made to the never-ending walk down the aisle, speaking of the “billionth trillionth” walk beginning. Even though this walk has been performed many, many times before, this song intimates a newness that will be shared by the whole world through this couple’s union. Despite the rehearsed, repetitive nature of the marriage march, the notions of inevitability and novelty come through in these lyrics.

It is contended here that a parallel exists between the marriage march and the performative relationship of law and religion. In this article, I argue that the expression “arbiter of religious dogma,” as first articulated by the Supreme Court of Canada in Syndicat Northcrest v. Amselem in 2004, has had a lasting and pervasive effect on the Canadian legal landscape, making this an inevitable marriage march. Put differently, “arbiter of religious dogma” bears further analysis in examining the relationship between law and religion in Canada. This article unfolds in three parts. Part I discusses Syndicat Northcrest v. Amselem ([2004] 2 SCR 551) with particular attention to this expression, as well as subsequent commentary on this case. Part II addresses the theoretical framework, notably what is meant when speaking of the Canadian lawscape/landscape. Part III proceeds to a review of the term “arbiter of religious dogma” from 2004 to 2013, in an effort to explore the discursive role that is played by this expression. The article closes with a discussion focusing on two elements: how the expression is employed by Canadian courts to determine what is considered “acceptable” when faced with claims of religious freedom and how this expression can buttress the Court’s own claim to decision-making legitimacy in such cases.

Part I. Case Study: Syndicat Northcrest v. Amselem

At issue in Amselem was whether the terms of the by-laws in the declaration of co-ownership in a luxury building could override individual owners’ right to freedom of religion. During the festival of Succot, a nine-day holiday commemorating the time of harvest, the appellants believed that it was their biblical obligation to each set up a succah (a small temporary enclosed hut).² During this holiday, the succah was supposed to be the place where meals were shared, and if good weather prevailed, where residents slept.

The luxury building’s by-laws stipulated that:

the balconies of individual units, although constituting […] “common portions” of the immovable, were nonetheless reserved to the […] “exclusive use” of the co-owners of the units to which they are attached. (Syndicat Northcrest v. Amselem, 2004: ¶ 4)

In the context of a co-property, a balcony is considered an integral part of the building; it is part of the “envelope” of the building. As such, it retains a common element and more importantly, a shared responsibility. The owners of each of the units have personal use of their balconies but ultimately, must respect the codes set out for the common or shared parts of the building. The appellants had never read the by-laws before purchasing their respective units. The syndicate requested that the appellants remove their succah, since they argued that the wooden structures (albeit temporary) violated the co-ownership’s by-laws on exterior decorations and created a fire hazard for the occupants of the building.

Following the initial complaint in 1996, further attempts were made by owners to obtain permission to build a succah on their personal balcony for the next year. This request was denied by the syndicate, which instead proposed that a communal succah be built in the gardens of the building, to be enjoyed by all other Orthodox Jewish residents of the building. This measure of accommodation was rejected, the appellants citing the need to have a personal, individual dwelling during this time. The appellants implored the syndicate to accept their individual succah, so long as they undertook measures to insure against fire hazards (Syndicat Northcrest v. Amselem, 2004: ¶ 11–15). The syndicate, in turn, found this proposal unacceptable. The appellants went ahead and set up their individual succah on their balcony. As a result, the syndicate “filed an application for permanent injunction prohibiting the appellants from setting up succahs and, if necessary, permitting their demolition, which was granted by the Superior Court on June 5th 1998” (Syndicat Northcrest v. Amselem, 2004: ¶ 17).

The lower court decisions are briefly highlighted, since relevant to understanding the root of the expression “arbiter of religious dogma.” At the Superior Court, two competing expert testimonies were presented and the trial judge relied heavily on these expert witnesses to come to a decision on the nature of the succah – and therefore, on the importance of personal belief. He concluded that the restrictions found in the declaration of co-ownership did not impose undue hardship on the appellants, since they could still erect a communal succah. As such, their [Québec] Charter rights had not been infringed unduly (Syndicat Northcrest c. Amselem, 1998). At the Québec Court of Appeal, a majority decision found that the impugned provisions were neutral and therefore could not be understood as discriminatory toward the appellants’ right to freedom of religion; moreover, according to the Appeal Court, the syndicate had discharged itself of obligations through the attempt at communal accommodation (Amselem c. Syndicat Northcrest, [2002] R.J.Q. 906: ¶ 33).

The Supreme Court of Canada was therefore faced with an important question. Which rights should take precedence: religious obligations over contractual ones, or vice versa?³

Although R. v. Big M Drug Mart ([1985] 1 SCR 295) is considered the cornerstone case for freedom of religion in Canada,⁴ Amselem has avowedly changed the way in which we think about and articulate these claims in Canada, through the sincerity of belief test. While it is beyond the scope of this article to engage fully with the literature surrounding Amselem (e.g., Woehrling, 1998; Moon, 2005; Ryder, 2005; Gaudreault-DesBiens, 2009; Berger, 2007; Beaman, 2008), qualifying the relationship between law and religion – and its subsequent effect on how one understands the sincerity of one’s belief – has emerged as a central point of interest for the purposes of this article. In modulating this relationship, law and religion do not escape life’s mundane problems, nor its complex challenges: in acknowledging its tenuousness and fragility, law’s relationship with religion becomes one that is mutually constitutive (or, if a pessimist, mutually destructive). Various authors have characterized the relationship between law and religion. Some have likened this relationship to that of the metaphor of voisinage, a private law concept, referring to the “fragile equilibrium” between neighbors (Van Praagh, 2008: 23). Nevertheless, in speaking of cohabitation – as does Van Praagh – voisinage refers to having a relationship that is not sanctioned, nor considered informal, by the State. Living together, as do law and religion, creates a sense of both unease and inevitability. And yet, much like a neighbor who is too nosy, or sits patiently at their window waiting to catch a glimpse into someone else’s life, it is difficult to extricate one from the other. Others have suggested that, in this way, religion and law’s relationship can also create friction, or “dueling narratives” (Bromley Chan, 2005), since they are in a constant state of shift but also, simultaneously building off each other. This suggests an exchange that is less based on hierarchy, but rather built on discourse. Finally, others still have recognized that law and religion constitute two cultural systems, which interact with one another (see Berger, 2007: 281; Berger, 2006: 15). In this final interpretation of law and religion’s relationship, law and religion are conveyed as two structuring orders amongst other points of cultural reference, and it points to their non-exclusivity over an individual’s beliefs. Although this does not constitute a definitive pronouncement on the relationship between law and religion, this section has sought to underline their mutual affinity and illustrate their effect in both space (as cultural systems) and place (as neighbors in a city, though perhaps squabbling ones).⁵

Amselem changed the legal landscape surrounding claims of freedom of religion in two ways. First, as illustrated by the Supreme Court majority judgment, as penned by Justice Iacobucci, “religion” was defined as follows:

While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith. (Syndicat Northcrest v. Amselem, 2004: ¶ 39)

Second, a test was developed on the basis of the sincerity of the claimant’s beliefs (Syndicat Northcrest v. Amselem, 2004: ¶ 56). Consequently, an infringement could only be considered after a decision had been reached on the sincerity of the claimant’s beliefs. In establishing both the parameters of religion as well as the boundaries of sincere beliefs, the majority of the Supreme Court judges had brought forth the makings of an objective and subjective approach to religion. This straddling, or vacillating, between perspectives has resulted in, according to Lori Beaman, an approach that “often lack[s] the fluidity that a complex understanding of religion requires” (Beaman, 2008: 194).

While the Supreme Court majority ultimately found in favor of the appellants, on the basis of their (religious) sincerity, foundational issues are emphasized when addressing cases related to freedom of religion: first, the difficulties related to defining religion; second, the precedence of the individual over the community or group; and third, the tempered importance of religious experts. On this final point, the majority acknowledged that expert testimony should not form the basis of the decision, thereby distinguishing between what is relevant and what is necessary to satisfy the burden of proof (Syndicat Northcrest v. Amselem, 2004: ¶ 54; on this point, see also Binnie J.’s opinion at ¶ 190). These challenges culminated in the following prise de position by the Supreme Court: when speaking about the principles of non-interference of the State with regard to deep personal beliefs, the majority stipulated that “the State should not become the arbiter of religious dogma” (Syndicat Northcrest v. Amselem, 2004: ¶ 50). The Court went on to specify that:

[the] courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, “precept”, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion. (Syndicat Northcrest v. Amselem, 2004: ¶ 50)

Indeed, while the expression “arbiter of religious dogma” had not appeared before in the Canadian jurisprudence, a similar expression had been employed in the United States some twenty years earlier, in Thomas v. Review Board of the Indiana Employment Security Division, 450 US 707 (1981), which made its way into the realm of the former decision (see Syndicat Northcrest v. Amselem, 2004: ¶ 45). This constitutes an interesting connection between these cases and can be understood here as what I have referred to as “transnational legal translation.” In the American case, the Supreme Court was asked to adjudicate on whether Thomas could be prevented from collecting unemployment benefits following the termination of his employment at a foundry that made military materials, on the basis of his religious beliefs as a Jehovah’s Witness. Justice Burger, writing for a majority of the US Supreme Court (Justice Rehnquist, as he was then known, dissenting), ultimately found that Thomas could not be barred from collecting unemployment benefits on the basis of his religious beliefs. In so finding, the Court had opened the door to the granting of legal recognition to the individualized right to free exercise of religion. The US Supreme Court noted that another Jehovah’s Witness might not hold the same moral scruples about participating in the making of military materials. As such, intra-faith differences are (legally) acceptable, although the Court did acknowledge that one could “imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause” (Thomas v. Review Board of Indiana, 1981: 715). And yet, the Court stated clearly that Thomas v. Review Board of Indiana did not constitute one of those cases: “[p]articularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation” (ibid., 1981: 716; emphasis added). The US Supreme Court sought to draw a jurisdictional line in the sand between what courts should be judging (like honest beliefs) and what they should not be judging (such as religious interpretation); this is made even clearer by their reiteration of their role as a “reviewing court” (ibid.). This position was echoed in subsequent cases.

The Canadian and American Supreme Courts are by no means the only jurisdictions to have employed expressions that distance the court from religious interpretation. As was seen very recently in the United Kingdom, in the keynote address to the Law Society’s Family Law Annual Conference, the President of the Family Division, warned that:

A secular judge must be wary of straying across the well-recognised divide between church and State. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and, generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are “legally and socially acceptable” and not “immoral or socially obnoxious” or “pernicious.” (Munby, 2013: 9; emphasis added, references omitted)

Indeed, the British version of this expression leaves no room for controversy at first glance: it is neutral. Yet in an attempt to allay fears of “doing religion,” or better yet, acknowledging the (Christian) roots of one’s judicial system, Sir James Munby’s argument highlights perhaps more problems than it solves. As such, it is impossible for the issue of jurisdiction to go unnoticed.

Interestingly, while both American and Canadian versions of this expression arrive at the same point – namely, the attempt to relinquish the judicial domain when questions of religious interpretation arise – the Canadian version speaks of the State more broadly, whereas the American version targets the Court apparatus specifically. While it is beyond the means of this article to offer an in-depth analysis of this point, it is suggested here that this institutional difference is emblematic or illustrative of how the relationship between law and religion is conceived in the two countries.

Judges can indeed be apprehensive about passing judgment on religion, according to some authors. In Winnifred Sullivan’s words, “[o]ne sees expressed in these disclaimers both a feeling of incompetence and a feeling of impropriety” (Sullivan, 2005: 100). Lori Beaman has similarly noted that “arbiter of religious dogma” is seen as an “acknowledgement of the undesirability of courts making judgments about the content of religion” (Beaman, 2011: 243). Both authors, each in their own way, speak about how religion challenges the content of one’s jurisdiction, and highlight the dangers of being “out of place.” Drawing on these authors, this article endeavors to explore the disquietude that resonates when this expression, “arbiter of religious dogma,” has been employed within Canadian courts. This discussion leads to the second section of this article, notably an explanation of what is meant when speaking of the Canadian lawscape/landscape.

Part II. Theoretical Framework: Understanding the Canadian Lawscape/Landscape

The word “landscape” originates from Middle Dutch in the 1600s and “denotes a picture of natural scenery” ( Oxford English Dictionary ). “Lawscape,” on the other hand, refers to the interrelationship between a conceptual frame⁶ and a particular jurisdiction: it is understood as a “fusion of space and normativity” (Philippopoulos-Mihalopoulos, 2013: 35). A “lawscape” therefore means a common and constitutive relationship between space and place. Andreas Philippopoulos-Mihalopoulos calls attention to the interrelationship between law and the city as being the “lawscape,” which is predicated on “mutual invisibility” (Philippopoulos-Mihalopoulos, 2007: 1).⁷ Nicole Graham, on the other hand, suggests that a lawscape is born from a necessary change in paradigm: “lawscape asks what landscapes can reveal about law” (Graham, 2011: 2). Speaking about property law, she argues that “the particularities of land, of place, determine the material limits of what is ultimately, authoritatively and sustainably local law and economy” (Graham, 2011: 7). This type of approach draws inspiration from legal geography and spatial analysis more broadly, where the site of analysis stems from the mutually constitutive relationship between frame and jurisdiction.

Within the confines of this article, “lawscape” and “landscape” are employed here to look at the mutual relationship between the courts and religion, and vice versa. Scheppele has argued that, “judges have often been described as architects because they build structures that shape people’s lives and their social practices” (Scheppele, 2012: 347–348). Although Scheppele’s comments were directed more broadly than the relationship between law and religion, she touches upon the interrelationship between judges’ constructions and peoples’ lives. It will be proposed here instead that judges’ constructions do not exist alone, but cohabit – sometimes peacefully and other times at odds – with a multiplicity of other edifices governing people’s lives. This approach brings credence to employing a spatial approach – since space and social relations are mutually constitutive of each other. This is particularly evidenced in the use of the expression, “arbiters of religious dogma.” Although the relationship between law and religion is inevitable, its very relationship highlights the difficulties in attempting to place boundaries and distinctions between these jurisdictional realms, which will be used as a way to guide the broader discussion in Part III.

Part III. A Review and Discussion of “Arbiters of Religious Dogma” (2004–2013)

A review of the use of the expression “arbiter of religious dogma” in court decisions between 2004 and 2013 in Canada serves as the foundation for the present discussion. While some cases involving claims of freedom of religion have invoked this expression, the substantial majority of cases have not. Using various legal search engines (including Quicklaw and CanLII), cases that employed the particular expression were searched for both in English (“arbiter of religious dogma”) and in French (“arbitre des dogmes religieux”). Between 2004 and 2013, freedom of religion was invoked in 2352 cases in Canada, all courts combined.⁸ Of those cases, however, only fourteen refer explicitly to “arbiter of religious dogma” and only eight make reference to “arbitre des dogmes religieux.”⁹ In combining English and French search results, fifteen cases were found to employ this expression, in all. As a side note, there is a noted variance between French and English uses of this expression in the case law and how it is subsequently reported, as illustrated in Table 1. Indeed, part of the discrepancy can be attributed to cases that are not translated into the other language; this is notable in labor arbitration and lower courts, such as the Cour du Québec, and trial level courts in common law provinces (including Ontario, Alberta and Newfoundland and Labrador). Unofficial English translation of cases from the Québec Human Rights Tribunal was available; however, no reciprocal translations were found for human rights cases emanating from the Ontario Human Rights Tribunal.

Table 1.

Review of “arbiter of religious dogma”/“arbitre des dogmes religieux”, 2004–2013.

	Case	“Arbiter of religious dogma”	“Arbitre des dogmes religieux”
1	407 ETR Concession Company v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, 2007 CanLII 1857 (ON LA)	✓
2	Marcovitz c. Bruker, 2005 QCCA 835	✓
3	Bruker v. Markovitz, [2007] 3 SCR 607	✓	✓
4	Chabot c. Corporation Sun Média, 2006 QCCS 2353		✓
5	Commission des droits de la personne et des droits de la jeunesse c. Laval (Ville de), 2006 QCTDP 17	✓	✓
6	David Brace v. Watch Tower Bible and Tract Society of Pennsylvania et al., 2009 NLTD 171	✓
7	Heintz v. Christian Horizons, 2008 HRTO 22	✓
8	Hoekstra v. First Hamilton Christian Reformed Church, 2011 HRTO 2108	✓
9	Hughes (Estate of) v. Hughes, 2006 ABQB 159	✓
10	Ivantchenko, et al. v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery, 2011 ONSC 6481	✓
11	L.M., Re, 2005 CanLII 20912 (QCCQ)		✓
12	Simoneau c. Tremblay, 2011 QCTDP 1	✓	✓
13	Veffer c. Canada (Ministre des Affaires étrangères), 2006 CF 540	✓	✓
14	R. v. Welsh, 2007 CanLII 39889 (ON SC)	✓
15	Zhu c. Canada (Citoyenneté et Immigration), 2008 CF 1066	✓	✓

A general comment can be made on the marked discrepancy between the overall number of cases that invoke freedom of religion and the minute number that overtly caution against the State becoming an “arbiter of religious dogma.” This suggests a deep-seated discomfort in even acknowledging a shared jurisdiction between law and religion when faced with legal adjudication, as well as when judging how best to retain control over the discourse (see Boyd White, 1990: 75–76).

This expression has also been used in an altered manner more recently in S.L. v. Commission scolaire des chênes ([2012] 1 SCR 235), where it was suggested that, “the courts do not search an applicant’s soul or conscience and do not seek to become theologians” (ibid., ¶ 49; emphasis added). This represents a notable change in position: no longer do we speak of the arbiter, who can settle disputes with ultimate authority, but we talk rather of the theologian, who engages unequivocally in the study of the nature of God and religious belief. This shift, or perhaps disciplinary divide, is reminiscent of Paul Kahn’s discussion on the difference between the divinity school and the department of religion, as opposed to law, where there is only a professional school, “without any corresponding academic department. Can we imagine a discipline of law that begins from a position that is neutral as between the victims of the legal order and the victims of other forms of violence? Or does law remain the last area of heresy in the modern academy?” (Kahn, 1999: 4). Kahn’s comment and the preceding quote from S.L. v. Commission scolaire des chênes point to the challenge of being self-reflexive and self-critical within a discipline: one can therefore ask whether it is possible for courts or judges to remain neutral when adjudicating on religious beliefs. It is also questionable whether that situation is even desirable, from the standpoint both of law and of religion.

And yet, for all the cases that have not drawn on this expression, fifteen cases have. The remainder of Part III focuses on the particular cases infused by “arbiter of religious dogma,” in terms of who uses the expression, what issues prompt its use, and when, where, why and how the expression is employed.

Who?

A first point can therefore be made on who articulates the caution against becoming the “arbiter of religious dogma.” Indeed, while the Court has employed this expression in order to not pass (religious) judgment – a point which will be returned to later – it is sometimes the parties themselves who invoke it as an attempt to retain jurisdiction over the internal affairs of the religious community and prevent the Court from “meddling” beyond its boundaries.

By the Parties

Many religious groups, including the Watchtower Bible and Tract Society, have employed this tactic as a way to argue that the opponent’s claim is not justiciable, since it would invite the Court to become the arbiter of religious beliefs. For example, in Brace v. Watchtower Bible and Tract Society of Pennsylvania (2009 NLTD 171), David Brace pursued legal action against various Watchtower defendants as well as named individuals. According to Brace’s statement of claim, he had attended religious meetings since the age of five, as a result of his mother’s decision and unspecified “undue influences” on the defendants’ part; this resulted in alienation from his mother and an inability to continue studies at the university level, amongst other claims. Although the vagueness of Brace’s claim ultimately proved to be untenable before the Court since no reasonable cause of action could be discerned, Chief Justice J. Derek Green (as he was then known) did comment on the justiciability of the claim. The defendants argued in this case that Brace’s action was not justiciable since it would invite the Court to become the arbiter of religious dogma. As explained by Chief Justice Green:

To the extent that the religious doctrine of the defendants is sought to be put on trial for the purpose of determining its appropriateness, it will transgress the judicial reluctance to engage in issues that will likely result in the court having to decide upon the correctness of religious dogma. (Brace v. Watchtower Bible and Tract Society of Pennsylvania, 2009: ¶ 46; emphasis added)

The judge does make an interesting caveat to his preceding point: if the actions or decisions violate legal rules that apply to all, then members of religious bodies are not sheltered from the courts’ scrutiny (ibid., ¶ 48–49; see Hughes (Estate of) v. Hughes, 2006 ABQB 159, discussed below).

Another religious group, who argued that it was not proper for the human rights tribunal to question its tenets of faith, also used this same line of argumentation. At issue in Heintz v. Christian Horizons (2008 HRTO 22) was whether adherence to the religious group’s Doctrinal Statement and the included “Lifestyle and Morality Statement,” which prohibited homosexuality, was essential for working at their community residences for persons with disabilities. Christian Horizons identified themselves as Evangelical Christian and argued that they fell under “special employment” as a religious organization and, as such, were within their rights to circumscribe employment to those who followed their Doctrinal Statement. As an individual committed deeply to her Christian faith but also a lesbian, Connie Heintz found herself in an untenable situation which resulted in her termination of employment. Despite Christian Horizons’ autonomy claim in choosing employees in line with their mission as a religious organization, their funding came almost exclusively from the Ontario Ministry of Community and Social Services and served a wider population. Christian Horizons argued that it was not proper for the Ontario Human Rights Tribunal (OHRT) to question their tenets of faith (ibid., ¶ 125). While the Ontario Human Rights Tribunal ultimately found in favour of Ms Heintz on the basis of discrimination due to sexual orientation (ibid., ¶ 203, 205), the Ontario Superior Court found, on appeal, that the OHRT had overstepped its boundaries in ordering that Christian Horizons cease imposing their Lifestyle and Morality Statement (see Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105).

By the Court or Tribunal

As indicated earlier, the Court can also avail itself of this expression in order to deny jurisdiction. In order to understand the framing of Hughes (Estate of) v. Hughes (2006 ABQB 159), one must first grasp the story that led to litigation. Bethany Hughes, then seventeen and a practicing Jehovah’s Witness, was diagnosed with acute myeloid leukemia; Ms Hughes, along with her mother, wished to refuse blood transfusions. Her father, however, also a practicing Jehovah’s Witness, authorized the transfusions. This consent resulted not only in a rift between Mr Hughes and the Watchtower, but also in the end of his marriage. Mr Hughes, named administrator of his daughter’s estate, undertook action against his ex-wife (which was later terminated) and the Watchtower defendants, as well as the hospital and hospital administrators. Mr Hughes’ Statement of Claim challenged the religious doctrine of the Jehovah’s Witness faith with regards to blood transfusions and their scientific knowledge. Indeed, while the defendants suggested that this claim was not justiciable, it was the Court that stated that engaging in the interpretation of a religious precept would force the Court to become the arbiter of religious dogma (ibid., ¶ 34).

Finally, this approach was also used, but ultimately failed, in a case where the applicant wanted his Canadian passport to read, “Born in Jerusalem, Israel” (Veffer v. Canada (Minister of Foreign Affairs), 2006 CF 540). The claimant argued that his religion taught him that Jerusalem was the capital of Israel; as such, the Court could not cast doubt on his beliefs – that to do so would cause the Court to become the arbiter of religious dogma. While the sincerity of the claimant’s beliefs was not questioned, the Federal Court considered that the passport was the property of the State and, as such, had to reflect Canada’s Passport Policy: “due to the present political situation, Jerusalem must stand alone. It cannot be entered in conjunction with Palestine or any other country name” (ibid., ¶ 11). Heeding to the claimant’s argument would effectively denature the caution issued in Amselem. As such, the “Charter can be used as a shield, but not a sword” (ibid., ¶ 24; confirmed in appeal: Veffer v. Canada (Minister of Foreign Affairs), 2007 FCA 247).

This being the case, “arbiter of religious dogma” can be employed to solidify or attempt to retrace the boundaries over the “accepted” narrative. In both cases, this expression speaks to the imperative of asserting control over the religious community.

What?

One can then ask what is at the source of the protracted litigation leading to the Court employing this expression. In one case, the human rights tribunal deferred expertise on the interpretation of the Bible used by the Christian Reformed Church (Hoekstra v. First Hamilton Christian Reformed Church, 2011 HRTO 2108) in the case of membership denied after an affair – since to interpret would mean judging those “engaged” in “sinful behavior” contrary to the Church’s beliefs.

Another case involved a police officer playing the role of a spiritual advisor (Obeah) in order to get the accused to confess to murder (R. v. Welsh, 2007 CanLII 39889 (ONSC)). At issue was whether the communications with the Obeah were considered as part of religious privilege, and therefore protected exchanges before the common law (see R. v. Gruenke, [1991] 3 RCS 263: ¶ 33–34). After resuming the experts’ reports, the judge situated the Obeah as follows:

Thus, it is within this nebulous philosophical zone that Obeah resides – not immediately recognizable as a religion according to the dominant religious paradigms, yet accepted by those who identify themselves as adherents and practitioners and recognized as such by experts in various fields of religious studies. (R. v. Welsh, 2007: ¶ 13)

Nevertheless, the Court suggested it was not its role to make “substantive pronouncements upon religions and adherents” (ibid., ¶ 7) but rather to decide on whether the beliefs generally associated with the Obeah would find protection under section 2(a) of the Canadian Charter of Rights and Freedoms (ibid., ¶ 10). Ultimately, the Court found that the applicants had not met the requirements for religious privilege as set out in R. v. Gruenke and, as such, dismissed the appeal (ibid., ¶ 88–100).

A similar line is taken in Ivantchenko v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery (2011 ONSC 6481), where the Court draws on Amselem “to avoid involving itself in doctrinal disputes” when called upon to address the wrongful dismissal of a nun from a religious organization (ibid., ¶ 7). Likewise in Chabot c. Corporation Sun Média (2006 QCCS 2353) – where the Raeliens took legal action against Québec media outlets following what they argued were undue attacks on their reputation, religion and private life – the Québec Superior Court drew on the Supreme Court’s discussion of what constitutes religion in Amselem. It found that it was neither useful nor necessary to pronounce itself on whether Raeliens could be considered as constituting a religion as understood under section 3 of the Québec Charter of Human Rights and Freedoms (ibid., ¶ 31–35).

In placing internal religious elements – such as canonical texts, figures (such as spiritual advisors) and internal religious organization disputes – beyond the Court’s jurisdiction, a line is drawn – or a boundary placed – between what is and what is not justiciable, before and under the law.

When?

Another point concerns when “arbiter of religious dogma” is employed. As illustrated in a child protection case (L.M., Re, 2005 CanLII 20912 (QCCQ)), the father invoked this expression quite late in the proceedings, when he was at risk of losing his children. This particular case opposed the parents to the State over issues related to their behavior or lifestyle, which potentially created a situation of moral or physical danger for their children. This included the question of children receiving vaccines. Proceedings had been brought against the parents, members of the Ultra-Orthodox Jewish community, because they had a very transient lifestyle, moving nine times in the previous four years (ibid., ¶ 3). Serious concerns were raised about the children receiving the basic necessities of life and proper hygiene. According to the father, vaccinations would go against his religious beliefs and would force the Court to become the “arbiter of religious dogma” (ibid., ¶ 89–92). Furthermore, the father argued, along with his legal counsel, that no expert testimony was necessary to verify the veracity of his religious beliefs – and the Court agreed with this line of reasoning (ibid., ¶ 90, 93). Finally, however, the Court found that the father’s usage of this expression was done in bad faith and ultimately constituted an artifice (ibid., ¶ 91–92, 98–99).

In returning to Veffer v. Canada (Minister of Foreign Affairs) – which addressed the claimant’s wish to have his passport in line with his religious beliefs and for it to read “Born in Jerusalem, Israel” – the temporality of his request might have had relevance. Employing “arbiter of religious dogma” in the setting of time reveals challenges in retaining control over one’s perceived identity in the face of governmental policies (e.g., Veffer) and in the face of familial loss (e.g., L.M., Re).

Where?

The review of cases reveals that this expression has been used in fields as diverse as labor grievances, citizenship and immigration, criminal matters, declaratory judgments, child protection, and especially surrounding questions of community membership. All the cases identified, which speak substantively about this expression, emanate from the lower courts – mostly human rights tribunals, labor arbitration and trial courts (as well as two Federal Court cases).¹⁰

Indeed, while the expression was found in Bruker v. Marcovitz ([2007] 3 SCR 607: ¶ 36), it simply relayed the Québec Court of Appeal’s decision without engaging with it. The latter case found in favor of Mr Marcovitz’s refusal to give the ghet, or Jewish divorce under Halakhic law, reaffirming that relief would be found in a religious forum rather than a secular one (Marcovitz c. Bruker, 2005 QCCA 835: ¶ 90). Moreover, although previously discussed, the transformed expression has also found its way into Commission scolaire des chênes, where “courts […] do not seek to become theologians” (S.L. v. Commission scolaire des chênes, 2012: ¶ 49): altering “arbiter of religious dogma” thusly suggests a shift in perception, but perhaps also in the parameters of adjudication. Either way, however, this displacement points to unease about engaging with religion in the courts.

The predominance of this expression in lower court cases highlights an important point about situating oneself in a conversation about religion. Indeed, this predominance of usage raises an interesting question about the place of the court within the greater State apparatus, and the need for it to remind itself of its own legitimacy and jurisdiction.

Why?

Employing “arbiter of religious dogma” can also be understood as an act of genuflection. It is, in its own way, an act of deference. But it can also serve to further frame what exactly is at stake here. This is illustrated in the judicial review of a citizenship and immigration case from the Immigration and Refugee Board of Canada, Refugee Protection Division (RPD), which had determined that Ms Zhu could not be considered a Convention refugee, or a person in need of protection (Zhu v. Canada (Minister of Citizenship and Immigration), 2008 CF 1066). At issue in this case was whether attendance at a house-church or underground church – as opposed to a State-sanctioned Church – in China could be considered as sufficient grounds for fear of religious persecution. Ms Zhu’s beliefs were qualified as “unsophisticated” by the RDP since they were acquired by way of an unsanctioned religious body of her choosing; the Federal Court noted that it should not be qualifying the sophistication of the claimant’s beliefs – to do so would require courts and judges to act in a manner inappropriate with regard to their role:

the RPD erred when it went on to articulate a rather elaborate conception of religious freedom which entirely discounts the subjective aspect of religious belief in holding that the legitimacy of a person’s belief can and should be measured against his or her level of religious sophistication. (ibid., ¶ 17)

The qualification of beliefs has also played out in other settings: in 407 ETR Concession Company v. National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (2007 CanLII 1857 (ONLA)), the arbitrator had to determine whether a grievance against the company on the basis of their biometrics security program, went against the religious rights of some of their employees. The grievors were all members of Pentecostal churches and worried that the introduction of biometric scanners into the workplace would place the “Mark of the Beast” on them (ibid., ¶ 109). The grievors’ positions were terminated for refusing to comply with the company’s new identification system. In this case, the arbitrator determined that the grievors’ beliefs were religious and should be protected since they were sincerely held (ibid., ¶ 133). The introduction of the biometric scanners was done without sufficient attempt at accommodation and resulted in undue hardship on the part of the grievors. The arbitrator found that the latter’s positions should be reinstated and measures should be taken by the company to accommodate their beliefs in their new identification system (ibid., ¶ 178–181).

Indeed, drawing on “arbiter of religious dogma” indicates the obligation to be attentive to the qualification and sophistication of the claimants’ beliefs. It also denotes a duty of understanding with regards to how these beliefs are translated into actions (see also CDPDJ v. Laval (Ville de), 2006 QCTDP 17: ¶ 182; Simoneau c. Tremblay, 2011 QCTDP 1¹¹).

Conclusion

How has the expression “arbiter of religious dogma” affected the Canadian legal landscape? This article has sought to investigate the use of this expression within the Canadian case law since 2004. The analogy offered at the outset of this article – the marriage march – presents something that is at once both new and old. The marriage march repeats the pattern that has been adopted in cases past, insofar as it concerns the principle of non-interference on matters of religious interpretation, but also reveals a particular kind of legal novelty, since it is applied to new situations of religious encounter. As a general point, it is interesting to note that the subsequent cases on freedom of religion – perhaps excluding S.L. v. Commission scolaire des chênes – including Bruker c. Marcovitz (2007), Alberta v. Hutterian Brethren of Wilson Colony ([2009] 2 SCR 567) and R. v. N.S. ([2012] 3 SCR 726), have not employed this expression. One can therefore question whether this points to its declining importance in Canadian case law. As such, the marriage march between law and religion, albeit inevitable from a normative perspective, may no longer need to remind itself of the bounds of its jurisdiction. This rejoins the general comment at the outset of this article on the contrast between the overall number of cases that invoke freedom of religion and the minute number that overtly caution against the State becoming the “arbiter of religious dogma,” suggesting a deep-seated discomfort in even admitting that there is a feeling of discomfort in this type of adjudication. The theoretical framework offered at the outset of this article suggests a relationship between space and place – in this sense, between law (the courts) and religion – each affecting the other in turn. This “spatial turn,” as it is known, shapes our understanding about space, which not only bolsters how religion and religious belief are conceived and feed into legal theory, but also how they are reified in the courts’ legal discourse (see Braverman et al., 2013: 10; Philippopoulos-Mihalopoulos, 2011).

The review of cases between 2004 and 2013 indicated that both courts and parties have used this expression to either engage with or refuse to interfere on religious questions. Questions of religious interpretation, or internal religious organizational disputes, provide fertile terrain for employing this expression as a rebuttal to the State’s “interference”. This resonates with Choudhry’s suggestion that religious minorities hold what he has termed “non-territorial jurisdiction,” which “extends only to members of the religious community” (Choudhry, 2012: 1105). Drawing on “arbiter of religious dogma” can also be accomplished at a particular point in legal proceedings – perhaps a point of no return, as seen in L.M., Re, when faced with definite familial loss. As such, this expression points to what is really at stake in these cases. Finally, as underlined earlier, the majority of cases in which this expression is invoked are heard within the setting of lower courts. This points to another question of interest: who feels compelled to invoke this expression, and why? It is suggested that the decline in the use of this phrase can also be correlated with the transformation of the sincerity of belief test, no longer an objective criterion (see Alberta v. Hutterian Brethren of Wilson Colony, 2009: ¶ 89–95 (McLachlin C.J.); S.L. v. Commission scolaire des chênes, 2012: ¶ 22–25 (Deschamps J.); R. v. N.S., 2012: ¶ 36 and 89–97 (McLachlin C.J.)).

“Arbiter of religious dogma,” as an expression, underscores the very challenges in placing boundaries and distinctions between jurisdictional realms. This expression illustrates the mutually constitutive relationship between the law and religion and at the same time, notions of inevitability and novelty, much like a marriage march. As our understandings of religion and the religious make-up of Canada change, novelty can be introduced into law through continually shifting configurations and relationships.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

This research was funded by a Social Sciences and Humanities Research Council of Canada Joseph-Armand Bombardier CGS Doctoral Scholarship.

Notes

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