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Human Rights, Religion and Social Diversity: A Private Law Perspective

Human Rights, Religion and Social Diversity: A Private Law Perspective. January 18, 2011 Professor Rosalie Jukier. Backdrop. When we think about the Charter or rights and freedoms, we think of the sphere of public law

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Human Rights, Religion and Social Diversity: A Private Law Perspective

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

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

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

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

  5. Refusal to grant wife a get • http://www.youtube.com/watch?v=0Ty8M8ZDiT0&feature=related • Can woman obtain damages for non-performance (which essentially means court will enforce this contract containing a religious obligation) • Can husband argue freedom from religion?

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

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

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

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

  10. Consistency? • Question 3: Are the cases of Amselemand Brukerconsistent? How does Amselemsquare with the Hutterian Brethren decision?

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

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

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

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

  15. Public Policy • Question 6: What is the link to public policy in the Brukercase and is it appropriate?

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

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

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