In Canada, Parent's Suit Challenges Classroom Demonstration of Smudging Ceremony

CTV News and Nanaimo News reported yesterday on the opening of a trial in Nanaimo, British Columbia in a suit against a school district because of a classroom demonstration of a Nuu-chah-nulth smudging ceremony. Plaintiff, the mother of a child in the elementary school classroom where the demonstration was carried out in 2015, says that the exercise violated her daughter's rights.  The daughter asked to leave the room, but her teacher told her that this would be rude and that she must stay in class and participate.  The lawyer filing the case said: "We believe that the government cannot compel citizens to participate in supernatural or religious ceremonies."

Suit Filed Against Quebec's Ban On Public Employees Wearing Religious Symbols

AP reported yesterday that in the Canadian province of Quebec, another lawsuit has been filed challenging Bill 21. The law, passed earlier this year, prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. (See prior posting.) This suit was brought by Fédération Autonome de l'Enseignement, a union representing 45,000 teachers.  Challengers claim the law not only violates freedom of religion, but also equality rights because its main impact is on teachers, 75% of whom are women.

Canadian Court Says Assisted Suicide Law Is Unconstitutionally Restrictive

In Truchon v. Procureur General du Canada, (Quebec Superior Ct., Sept. 11, 2019) [opinion in French], a Quebec trial court judge held that portions of the Canadian and of Quebec's assisted suicide laws are unconstitutional because they are too restrictive. As summarized by Canadian Press:

Justice Christine Baudouin found in favour of two Quebecers struck by incurable degenerative diseases who'd argued they were denied a medically assisted death under laws that are discriminatory.

Baudouin ruled invalid the Criminal Code requirement that a natural death be "reasonably foreseeable" before someone can be eligible for assisted death. The condition has prevented some people from accessing the end-of-life procedure. She also invalidated a section of the Quebec law that says people must "be at the end of life."

But the court granted an exemption to Truchon and Gladu [the plaintiffs], allowing them to seek medical aid in dying during this period if they satisfy other conditions in the law.

Canadian Court Says West Bank Wines Cannot Be Labeled "Products of Israel"

In Kattenburg v. Attorney General of Canada, (Federal Ct. Canada, July 29, 2019), a judge of Canada's Federal Court held that labeling wine produced by wineries in the West Bank settlements of Shiloh and Psagot as "Products of Israel" is false, misleading and deceptive in violation of § 7(1) of Canada's Consumer Packaging and Labelling Act and § 5(1) of Canada's Food and Drugs Act. The court said in part:

Both parties and both interveners agree that, whatever the legal status of the settlements may be, the fact is that they are not within the territorial boundaries of the State of Israel.

The court added:

[S]ome individuals opposed to the creation of Israeli Settlements in the West Bank express their opposition to the settlements and their support for the Palestinian cause through their purchasing choices, boycotting products produced in the Settlements. In order to be able to express their political views in this manner, however, consumers need to have accurate information as to the origin of the products under consideration. Identifying Settlement Wines incorrectly as “Products of Israel” inhibits the ability of such individuals to express their political views through their purchasing choices, thereby limiting their Charter-protected right to freedom of expression.

The Globe and Mail reports on the decision.

Canadian Court Orders Reconsideration of Election Date That Conflicts With Jewish Holiday

In Aryeh-Bain v. Canada (Attorney General), (Canada Fed. Ct., July 23, 2019), a judge of Canada's Federal Court ordered Canada's Chief Electoral Officer to reconsider his decision that refused to reschedule the October 21 Canadian federal election that conflicts with the Jewish holiday of Shemini Atzeret.  According to the court:

If the election is held on Shemini Atzeret, Ms. Aryeh-Bain, who is a candidate for the Conservative Party in her riding, must refrain from voting and campaigning during that period. Similarly, Mr. Walfish and other Orthodox Jewish voters (estimated to be 75,000 nationwide) will be unable to vote on election day or otherwise be involved in the election on that day.

In addition to polling day being on Shemini Atzeret, two of the advanced polling days  conflict with either the Sabbath (October 12) or the festival of Sukkot (October 14), both of which are also Jewish holidays. The last day to obtain a special ballot (October 15) also falls on Sukkot.

The court held that administrative decision makers are required to balance rights under the Charter of Rights and Freedoms with statutory objectives when making administrative decisions. It went on:

The record does not indicate how or if the CEO “balanced” these considerations against the Charter values of Orthodox Jewish voters and candidates to ensure their rights to “meaningful participation” are respected.  The CEO’s efforts were focused on advance polling and special ballot options.  No consideration appears to have been given to recommending a date change.

Canadian Press reports on the decision.

Quebec Court Refuses To Enjoin Law Barring Officials From Wearing Religious Symbols

In Hak v. National Council of Canadian Muslims, (Quebec Super. Ct.., July 9, 2019) [opinion in French], a Quebec trial court refused to issue a temporary injunction against enforcement of the province's new law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) According to CBC News:

The government hoped to shield the law from constitutional challenges by invoking the notwithstanding clause; meaning critics can't appeal to the fundamental freedoms section of the Charter of Rights and Freedoms to get it struck down....

At several points in his decision, [Judge] Yergeau said the injunction request had a steeper hill to climb because the civil society groups couldn't argue the law violated fundamental freedoms protected by the charter.

"The plaintiffs had no other choice for success than to base themselves on purely constitutional arguments, as opposed to Charter arguments, whose validity remains uncertain," the decision reads....

He noted, in particular, the arguments that the law trampled on federal jurisdiction and violated minority rights had enough merit to warrant further consideration by the courts.

But he also said claims that the law had caused irreparable harm were "purely hypothetical and often speculative" given the motion filed so quickly after it was passed.

Quebec Enacts Ban On Public Employees Wearing Religious Symbols

On June 16 in Canada, Quebec's Parliament passed and the Lieutenant Governor signed (legislative history) Bill 21 (full text as introduced; adopted amendments), a controversial law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. However it prohibits any other accommodations from being granted under the law. The new law also requires an extensive list of public employees to carry out their functions with their face uncovered. It also requires persons who seek public services to present themselves with their face uncovered if necessary for identification or security. Parliament invoked the "notwithstanding clause" of the Canadian Constitution to prevent constitutional challenges.

The new law additionally sets out broader principles of secularism for the province:

CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE

1. The State of Québec is a lay State.

2. The laicity of the State is based on the following principles: (1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion.

The new law also amends Sec. 9.1 of Quebec's Charter of Human Rights and Freedoms to  to add "State laicity" as one of the permissible factors to consider in limiting freedoms.  Montreal Gazette reports on the legislation. Chatelaine summarizes the new law and its enactment:

After a long debate, the bill was passed at 10:30 p.m. on June 16 with support from the Parti Québécois. The Quebec Liberal Party and Québec Solidaire voted against the bill. Bill 21 formally bans teachers, police officers, judges and many others from wearing items like hijabs, turbans, kippas, and crucifixes in the course of their duties. It also doubles down on pre-existing legislation that requires citizens to uncover their faces when accessing public services like municipal transit and the legal system.

One day after the law was enacted, the National Council of Canadian Muslims and the Canadian Civil Liberties Union filed suit to declare the law invalid and to obtain an interim order staying its operation while the litigation is pending.  The complaint (full text) in Hak v. Attorney General of Quebec, (Quebec Super. Ct., file 6/17/2019), contends that the law exceeds the powers of the province, is impermissibly vague and contravenes the "internal architecture" of the Canadian Constitution. CTV News reports on the lawsuit.

Suit In Canada Seeks To Move Election Day To Avoid Jewish Holiday

A lawsuit was filed last week in federal court in Canada seeking to move the upcoming federal election from Oct. 21 to Oct. 28.  According to Vos Iz Neias:

Shemini Atzeret comes out this year on Election Day, Oct. 21, which would prevent observant Jews from casting their ballots. Of the four advance polling days, three are on other Jewish holidays or Shabbat....

Chani Aryeh-Bain, the Conservative Party candidate for the Toronto-area district of Eglington-Lawrence, and voter Ira Walfish of York Centre, also a Toronto-area district, filed the suit claiming that the election date discriminates against observant Canadian Jews.

Aryeh-Bain is an observant Jew and therefore would not be able to campaign on Election Day, the lawsuit says....

[Thanks to Steven H Sholk for the lead.]

FLDS Bishop Convicted By Canadian Court In Marriage of His Minor Daughter

In Regina v. Oler, (B.C. Sup. Ct., May 17, 2019), a British Columbia trial court found Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) Bishop James Oler guilty under Canadian Criminal Code §273.3(1)(b) of removing his 15-year old daughter from Canada for purposes of sexual exploitation. As summarized by the court:

The Crown alleges that upon receipt of instructions from Warren Jeffs on June 23, 2004, Mr. Oler facilitated the removal of his daughter C.E.O. from Canada and transported her together with others to Cedar City, Utah, on June 24, 2004, and then to Mesquite, Nevada where C.E.O. was married to James Leroy Johnson on June 25, 2004, by Warren Jeffs in the presence of Mr. Oler. In doing so, Mr. Oler foresaw that upon her marriage, C.E.O. would be the subject of sexual contact which, if it had occurred in Canada, would be prohibited by s. 153 of the Code.

Lethbridge News reports on the case.

Ontario Court Upholds Requirement That Objecting Doctors Refer Patients to Others

In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, (Ont. Ct. App., May 15, 2019), the Ontario Court of Appeal rejected a constitutional challenge to two policies of the College of Physicians and Surgeons of Ontario.  At issue is the requirement that physicians who object to providing any medical procedure or pharmaceuticals on the basis of religion or conscience must refer the patient to a non-objecting, available and accessible physician, health care professional or agency.  Physicians challenging the policies claimed they infringe their freedom of conscience and religion under Sec. 2(a) of the Canadian Charter of Rights and Freedoms by requiring them to be complicit in procedures such as abortion or aid in dying that violate their religious beliefs. In a 74-page opinion, the court held while the policies infringe religious liberty, the infringement is justified under Sec. 1 of the Charter, because they are reasonable limits, demonstrably justified in a free and democratic society. The Globe & Mail reports on the decision.

Canada Repeals Blasphemous Libel Section of Criminal Code

On Dec. 13, Royal Assent was given to Bill C-51 which has been passed by Canada's Parliament.  Among other things, the new law repeals Sec. 296 of Canada's Criminal Code. Sec. 296 criminalized blasphemous libel, and subjected offenders to up to two years in prison.  In a press release, the Canadian Secular Alliance applauded the repeal.

Canada's Youth Job Program Changes Attestation Requirement After Objections By Pro-Life Groups

Global News reports that this year the Canada Summer Jobs program is changing its grant application process after objections last year from religious organizations to the requirement that they attest, in applying for funds, that "both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights."  The rights covered included reproductive rights and non-discrimination on the basis of sexual orientation or gender identity. Anti-abortion groups sued arguing that the required attestation violated their freedom of expression and religious freedom. (See prior posting.) This year, no attestation is required. Instead the burden is on Service Canada to determine whether grant funds will be used to hire young people for work that will restrict reproductive right or promote prejudice or discrimination.

Witnesses May Take Oath on Eagle Feathers In Two More Canadian Provinces

In two more Canadian provinces, Indigenous Peoples will now have the option of taking the oath as a witness using Eagle feathers instead of a Bible.  Earlier this month, the Nova Scotia court system adopted the practice (CBC News). Yesterday it was reported that a similar step was taken at the Lethbridge, Alberta Courthouse. (CBC News).  These follow introdction of the option almost three years ago at the Ottawa, Ontario Courthouse. (CBC News).

Canadian Diocese Wins Suit Against Insurance Company That Refused Coverage For Abuse Victims

In Aviva Insurance Company of Canada v. L’Évêque catholique romain de Bathurst, (NB Court of Appeal, Oct. 18, 2018), the New Bunswick Court of Appeal held that the Catholic Diocese of Bathurst is entitled to $3.35 million damages against its insurance company that refused to cover amounts paid to victims of clergy sexual abuse. The court said in part:

While the underlying facts of this litigation are most disturbing, at its core this is a breach of contract case involving a diocese that, over the years, purchased general public liability insurance from an insurer, which, many years later, when claims were made, wrongfully denied coverage. The question on appeal is whether the diocese is entitled to damages for breach of contract in amounts that involve the costs of, and payments made through, a conciliation process the diocese set up as a result of its insurer’s denial of coverage....

The Diocese’s right to damages did not rest on it being legally obligated to make the conciliation payments. The correct legal test is one of reasonableness; the trial judge was bound to follow this test and determine whether the conciliation process and the resulting payments were a reasonable response to breach of contract. I conclude the actions of the Diocese did constitute a reasonable response, within the boundaries of the law, to Aviva’s wrongful denial of coverage.

CNS reports on the decision.

Amish Couple Sue Seeking Exemption From Photo Requirement To Get Permanent U.S. Residency

AP reports that an Old Order Amish couple filed suit yesterday in an Indiana federal district court challenging the federal government's refusal to grant permanent residency to the wife--a Canadian-- unless the husband and wife furnish photos of themselves.  The couple has refused because of their religious belief that photos are graven images prohibited by the Second Commandment. The couple wed in 2014 after the husband's first wife died. They live with their 13 children in an Amish farming community in southern Indiana. They claim that the government's refusal to accommodate their religious beliefs violate their 1st and 5th Amendment rights. [Thanks to Tom Rutledge for the lead.]

Trinity Western Drops Community Covenant Requirement For Students

As previously reported, in June the Supreme Court of Canada upheld the decision by two provinces to refuse to accredit Trinity Western University's proposed new law school. The provinces took the action because of the University's religious-based Community Covenant which, among other things, barred students, faculty and staff from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In response, last week the University announced that the Covenant will no longer be mandatory for students.  However, as reported by Inside Higher Ed, the Covenant will remain mandatory for faculty, staff and administrators. [Thanks to Steven H. Sholk for the lead via TaxProf Blog.]

Canadian Court Invalidates Limits On Charities' Lobbying Expenditures

CBC reports on a July 16 decision by the Ontario Superior Court of Justice which invalidated provisions of Canada's Income Tax Act which limit expenditures for political lobbying activities by charities to 10% of its resources. (Background.)  According to CBC:

The decision by Justice Edward Morgan of the Ontario Superior Court of Justice is a reprieve for the tiny Ottawa group that launched the challenge — Canada Without Poverty — which has been under formal notice of losing its charitable status since 2016....

Morgan's decision does not alter the prohibition against charities engaging in partisan activities — that is, supporting particular candidates or political parties. Charities have not challenged that section of the Act....

But he did rule the 10 per cent rule was an arbitrary and unjustified infringement of freedom of expression as guaranteed in Section 2 of the Charter of Rights and Freedoms. And he said Canada Without Poverty needs to engage in political activity, such as buttonholing ministers and encouraging Canadians to contact their MPs, to carry out its charitable purpose.

Canadian Court Says Polyamorus Trio Can All Be Listed As Child's Parents

The Provincial Court of Newfoundland and Labrador, for the first time in Canadian history, has ruled that three adults living in a polyamorous relationship can all be listed as a child's parents on the child's birth certificate.  According to a July 6 report by the Log Cabin Democrat, Justice Robert Fowler wrote:

Society is continuously changing and family structures are changing along with it. This must be recognized as a reality and not as a detriment to the best interests of the child.

Temporary Injunction Issued Against Quebec's Anti-Niqab Law

In the Canadian province of Quebec yesterday, a trial court again blocked the province's anti-niqab law from taking effect.  The law bans the both those furnishing government services, and those receiving them, from doing so with their face covered. (See prior posting.) According to Reuters:

A judge in December suspended the ban until the provincial government crafted regulations. The completed regulations, which included arrangements for individuals to obtain religious exemptions, were poised to take effect on Sunday.

But another judge on Thursday deemed the new rules confusing and ambiguous and suspended implementation again while the court challenge goes ahead.

Quebec Superior Court Judge Marc-Andre Blanchard wrote in his ruling that the law appeared on its face to violate the Canadian Charter of Rights and Freedoms, adding it could cause Muslim women “irreparable harm.”

Two FLDS Leaders Convicted of Polygamy In Canada

AP reports that in the Canadian province of British Columbia, two leaders of the FLDS sect living in the border town of Bountiful have been sentenced by a trial court judge to house arrest after being convicted of polygamy.  61-year old Winston Blackmore, found guilty of having 24 wives, was given 6 months house arrest followed by 12 months probation and 150 hours of community service.  James Oler, who was convicted of having 5 wives, received 3 months house arrest, 12 months probation and 75 hours community service work. There are only two other convictions for polygamy in Canadian history, one in 1899 and the other in 1906.