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RELIGIOUS FREEDOM.

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Introduction
Religion relates to the beliefs and convictions held by an individual or group of
individuals. Ideally, people believe in different religions nd convictions. In Canada, people have
freedom in relation to religion and the beliefs held in accordance with respective religions are
protected by the law. Similarly, people who are not attached to any religious belief are equally
protected by the law. Employers are not required to exercise discrimination on the basis of
gender race religion and color. Employees are employees, irrespective of the religious affiliations

they are attached to. The Canadian law requires that employers understand this concept clearly,
that all employees must be treated with equity.
However, with diversity experienced in the Canadian workforce, there has been a
challenge involving employers and employees. The challenge relates to the ability of the
employers to strike a balance between achieving efficiency and meeting and accommodating the
needs of the employees. Particularly, the challenge of accommodation of religious belief and
convictions is very pronounced. Therefore the question is; is it hard for Canada to accommodate
religious beliefs and convictions as enshrined in the constitution? Another important concern
regards the question of whether the Canadian government and the general society can be in a
position or rather can afford to adopt and maintain a system in which people or rather persons
motivated by their religious belief enjoy constitutional right to disregard otherwise valid laws of
general application, as per the words of law professors Christopher Eisgruber and Lawrence
Sager1
This essay therefore seeks to consider the foundation of religious freedom in Canada,
and the legal aspect from which it is attached. Additionally, the paper will strongly focus on the
duty of employers to accommodate religious beliefs and convictions of their employees. Through
making a review of court decisions, the essay will clearly evaluate the changing and equally
dynamic nature of the duty of employers to accommodate and defend the religious requirements
and rights of their employees in the workplace.
How hard is it to accommodate religious practices in Canada?
Accommodation of religious practices has been little bit hard in the past in Canada. For
example, the town of Herouxville in Quebec published Standards for which its community
must abide by. However, whereas the set Standards purport to welcome all kinds and calibers
of people, the goal of the town is to let new people arriving into the town known how easily they
can be able to integrate into the community2.
In as much as some of the standards in Canada are meant to provide safety, some appear
to clearly communicate refusal to offer religious accommodation. For instance, while denying
and precluding students from carrying weapons makes sense as far as security of other people is
concerned, the standard is a response to the Canadian Supreme Court in a decision made in
Multani. In the decision, the Supreme Court permitted a certain Sikh student to carry a Kirpan, a
dagger, on the basis that it the religious beliefs and practices of the student needed to be

Christopher L Eisgruber & Lawrence G Sager, RELIGIOUS LIBERTY AND THE MORAL STRUCTURE OF
CONSTITUTIONAL RIGHTS (2000) 6:3 Legal Theory 253.
2
Kuhn LLP, How hard is it to accommodate religious practice?, (2013), online:
<http://www.kuhnco.net/index08a9.html?action=d7_article_viewer_view_article&Join_ID=226499&template=new
s_article.htm7>.

accommodated3. In as much as the town of Herouxville purports to invite all classes of people
without exercising any form of discrimination, the town of Herouxville is simply communication
to the whole world that religious accommodation is one of the standards they dont subscribe to.
Those people in the religious majority may be in a position to identify with the town of
Herouxville. On the other hand, those in the religious minority may completely feel
unwelcomed. In Canada, religious freedom requires that religious belief s and practices are
accommodated to an extent that the accommodation does pose any safety or healthy risks to the
general population.
Importance of religious accommodation
Since Canada is one of the multicultural and multi-religious countries, religious
accommodation is important .Muslims, Christians and all other religions found in Canada should
be allowed to observe their religious holy days as required by their respective religions.
Additionally, apart from being allowed to observe their religious holy days, they should be paid
for the off days they take.
In a case that involved Derksen v. Myert Corps Inc., Myert, an employee, was denied a
chance to take an off day inorder for him to observe the moon as per the requirements of his
religion. In their ruling, the BC Human Rights Tribunal indicated that by the employer denying
Myert an off day to observe the new moon, the employer exercised discrimination. As a
Christian believer and a member of the Christian Churches of God, Myert is supposed to, as per
his religion, observe five holy days every year besides also observing lunar new moons every 29
days. In the case, it is indicates that shortly after being hired, Myert took a one day off work to
observe a religious holiday. This prompted his employer to write him a memo that he wont
again permit him to take any other off days for purposes of observing religious holidays.
However, even after the memo, Myert took another off day to observe another religious holiday,
an act that prompted the employer to dismiss him4.
In their ruling, the tribunal held that the memo that the employer wrote was prima facie
(Based on first impression) discriminatory in its essence, and further contravened the BC Human
Rights Code. The company failed to prove that religion never contributed to Myerts dismissal
from service. However, the company proved evidence that it would actually dismiss Myert by
the end of his probation on the ground of poor performance.
Religion as a fundamental freedom

Kuhn LLP, How hard is it to accommodate religious practice?, (2013), online:


<http://www.kuhnco.net/index08a9.html?action=d7_article_viewer_view_article&Join_ID=226499&template=new
s_article.htm7>.
4
Employees religious needs: Accommodate them or face costly consequences, (2016), online:
<https://www.go2hr.ca/articles/employees-religious-needs-accommodate-them-or-face-costly-consequences>.

Freedom of conscience and religion is guaranteed in Section 2(a) of the Canadian Charter
of rights and freedom. Similarly, discrimination on the grounds of belief, religion and creed is
prohibited by human rights legislation allover across Australia. Infact, in Australia, courts and
other tribunals formed have worked very hard to interpret and apply these provisions. Infact, the
Supreme Court of Canada, in one of the decisions made under Charter, R.V. Big M Drug Mart
Ltd.5, defined and described freedom as:
The concept of freedom of religion is ideally found and based on the essence to entertain
religious beliefs and individual chooses the right of an individual to openly declare his religious
beliefs without any fear and favor and the right to openly practice religious beliefs by either
worship or teaching. However, the concept means more than that. It is worth noting that
freedom can as well be characterized by lack of constraint or even coercion
Those who dont belief in any religion are equally protected by the law.6 .The decision
that was arrived at or rather made by the Supreme Court in Canada in relation to freedom of
religion of Amselem v. Syndicat Nortcrest was revisited. The case of Amselem v. Syndicat
involved a request that was made relating to the removal of religious huts or Succots from
balconies of condominium-owners who were know n to be Jews. It is said the Succots were part
of people claiming for celebration of religious holidays. The municipality stated that by the tents
be erected, the y violated their by-laws especially because decorations were put in balconies. The
Supreme Court had to review the meaning and definition of a persons religious freedom, in
holding to the belief that the claimants rights had been infringed by the municipals by-laws.
The Court made it clear that freedom of religion should be clearly understood that it include
freedom to openly hold religious beliefs. Additionally, freedom of religion includes freedom not
to belief in any religion. The supreme defined religion as follows:
Whereas it is almost impossible to precisely define religion, some other outside
definitions important and useful because it is only beliefs and convictions strongly rooted in
religion as opposed to secular ones that are protected by the freedom of religion. Particularly
and broadly defined, religion involves a comprehensive system of faith. Similarly, religion
involves that belief people have in a particular supernormal power. Ideally in essence, religion
refers to the beliefs and convictions that a particular individual has and believes in. 7
In the above definition therefore, in consistence with Personal convictions and beliefs,
the Supreme Court rightfully established tests for assessing claims of infringement on rights to
religious freedom. Religious freedom has two important components which include: A belief
related to religion, and a contractual; provision that affects the claimants ability and capacity to
act according to his or her religious beliefs in a substantial manner.

R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17 (QL), 1 S.C.R. 295.
Ibid. at paras. 94-95, 123
7
Ibid, at para. 39
6

The Court, through its decision, established a two-step process for establishing whether
there is a sincere belief and conviction related to religion. The first step is to identify and
determine the basis of the belief or the conviction. The Majority decision of the Supreme Court
makes an indication that an employee has a right and duty to clearly indicate and establish that a
belief he old is purely religious and not secular. The second step is to establish the sincerity that
is portrayed in the claimants beliefs. The individual must believe that he or she and is bound by
religious obligations. However, to establish sincerity, sincerity must be judged on a case-by case
basis and supported by tangible evidence.
Religious freedom and exemption from certain laws
One of the basic and rare questions regarding religious freedom is whether religion
should be free and what it should be free from inorder for it to be free. This one of the
arguments that has created a lot of debate and there are some of the answers that have been
advanced by law professors. Firstly, according to Law professor Christopher Eisgruber and
Lawrence Sager, religion exercise is free and rightfully free so long as it is free from any
political actions which are deliberate. Therefore, according to them, the law prohibits freedom of
religion if and only if it singles out religious practices which are meant to bring out unfavorable
treatment. Secondly, religion is free so long as the practice is free from burdens greater and
bigger than those placed by the government on other comparable activities; hence the law should
prohibit religious freedom if and only if it treats religion badly and differently compared to other
activities. Thirdly, religious exercise is free only and only if it is free from any cost implication;
hence the law prohibits religion if religion imposes any cost upon religious practices8.
However, where the line should be drawn by the society on the spectrum is the matter
to be debated. A time, we need to leave or rather abandon the belief that the unique value of
religion is what rightfully entitles them to constitutional attention. Infact, what motivates
solicitude for the constitution for religious practices is the vulnerability it is prone to, and not
because of value. Therefore, what is required is not enjoyment of privilege against concerns by
the government, but rather, protection from discrimination.9. The government should treat
religious concerns in the same manner and weight it treats the concerns of other citizens. The
argument that has been advanced by the law professor Richard Moon is that even if significant
value is equally attached to the spiritual nature of human beings, it doesnt mean that the actual
beliefs of communities and individuals should be granted special protection in the law and hence
treated differently.
Accommodating religion in the workplace

Christopher L Eisgruber & Lawrence G Sager, RELIGIOUS LIBERTY AND THE MORAL STRUCTURE OF
CONSTITUTIONAL RIGHTS (2000) 6:3 Legal Theory 253.
9
Christopher L Eisgruber & Lawrence G Sager, RELIGIOUS LIBERTY AND THE MORAL STRUCTURE OF
CONSTITUTIONAL RIGHTS (2000) 6:3 Legal Theory 253.

The Canadian Charter and legislation on human rights require that even to the point of
hardship, employers are required by law to accommodate and protect the religious rights and
practices of their employees. The Canadian courts and tribunal have clearly indicated that
employers must accommodate the needs of employees whose rights have been interfered with.
Particularly, employers re required to create conducive environments where workers feel free to
exercise their freedom, including freedom to religion and worship. This has led to a long chain of
cases trying to establish employers duty in relation to accommodation of employees religious
freedom at works. Interestingly however, most of the cases that were previously addressed by the
Canadian Supreme Court involved the accommodation of employees religious practices and
establishment of appropriate work schedules. For example in Ontario, OMalley v. SimpsonsSears, the Canadian Supreme Court clearly made establishment regarding principles of the duty
to accommodate religious practices, which, to Canadian Jurisprudence, remain very central.
Leave to observe religious holidays
Ideally since all employers must treat all their employees equally, the equal treatment
must be evenly distributed to include religion. When it come s to pay, all employees must be
paid equally, irrespective of any religious affiliations an employee is attached to. This therefore
does not mean that a Muslim employee be paid better that than a Christian or vice versa.
Different religions have different holidays attached to them. For instance, on 25th December of
every year, all Christians celebrate Christmas holiday, a day they belief Jesus Christ was born.
Similarly, Muslims have various holidays celebrations attached to their religious belief.
However, irrespective of the religious attachment, all employees should be accorded the
same treatment as far as religious holidays are concerned. This therefore means that Christians
should be allowed leave to celebrate holidays attached to their religion for example, Easter
holidays, Christmas holidays, and Good Friday e.t.c. Similarly, Muslims should be granted leave
to attend to their holidays like, Eid Al-Fitr and Eid Al-Adha.
In a certain case, Commission scolaire regionale de Chambly v. Bergevin, the Canadian
Supreme Court clearly addressed religious accommodation requirements in the context for
religious leaves requisitions.10. The case involved Three Jewish teachers who tabled a grievance
requiring that they allowed take a pay-off leave to observe Yom Kippur holiday. Because the
school they were working for had its own polices to follow, the school board denied the Jewish
teachers their request on the grounds that the school policy prohibited payment to be advanced to
any employee who took leave days to observe certain holidays. The Supreme Court took to the
ruling that the school board had a duty to provide religious accommodation to its employees and
that the school board had not met the required duty. Infact, according to the Supreme Court,
there was no evidence presented that if the school board paid the Jewish teachers on the
requested holiday, there would be a financial burden on the school. However, it proofed
10

Commission scolaire regionale de Chambly v. Bergevin, [1994] S.C.J. No. 57 (QL), 2 S.C.R.
525

extremely difficult for the Court to hold such a position because the school board, through its
bargaining agreement, had clearly made provisions in art 5-14.05 , regarding the payment of
teachers who were absent because of valid or rather genuine reasons, for specific number of
days. It would be extremely unreasonable to argue and contend that the absence of a teacher to
observe a particular holiday would not amount to good reason for the absence.