Recently, the Supreme Court of Canada (SCC) returned to the test of individual sincerity for determining whether there has been an infringement of freedom of religion pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the Charter)Footnote ¹ in SL c Commission scolaire des Chênes.Footnote ² Sincerity of belief or in practice as necessary for religious expression on the part of a complainant has been accepted from some of the earliest Charter casesFootnote ³ as the triggering requirement for a section 2(a) claim, and, in itself, sufficient to establish a claim which a court must then balance against conflicting claims pursuant to section 1 (‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’) or section 15 (equality rights). In SL, the court confirmed that mere sincerity is no longer sufficient and that an objective burden of proof now rests on a claimant to show how a state-sanctioned requirement infringes the fundamental right to freedom of religion before competing claims will be assessed. In SL, the court found that the complainants had failed to show how a religious education course mandated for all students without exception by the Government of Quebec interfered with what they argued was their religious freedom as Roman Catholic parents to pass on their faith to their children. This result has also been interpreted to mean that the state has a right prior to parental rights in the religious formation of their own children, and, on this reading, has been highly controversial.Footnote ⁴ The court's new formulation of a sincerity test may be of interest elsewhere. The earlier formulation in Syndicat Northcrest v Anselem Footnote ⁵ was adopted by the House of Lords in R (Williamson) v Secretary of State for Education and Employment,Footnote ⁶ and the subsequent spread of its use has since been subject to consideration in England.Footnote ⁷

SL was concerned with parents of school-age children who were refused permission by their local public school board to be exempted from the Ethics and Religious Culture course (ERC), which has been compulsory from kindergarten to grade 12 in Quebec since 2008. The parents simply argued that the refusal constituted an infringement of their freedom of conscience and religion pursuant to section 2(a) because it interfered with their fundamental freedom to believe it to be their religious duty to pass on their Roman Catholic faith to their children. Historically, Quebec schools were divided into Roman Catholic and Protestant schools for funding purposes after Confederation in 1867. However, in 1997, the Constitution Act 1867 was amended to abolish denominational schools and reorganise the school system in Quebec on linguistic grounds.Footnote ⁸ The Government of Quebec, after various public consultations, proposed a new programme to teach students about religion, culture and moral perspectives in a manner emphasising diversity and free choice, and enacted legislation to that effect in 2005.Footnote ⁹ This course was developed and implemented in 2008.Footnote ¹⁰

The chief complaint about the course was that it was not neutral, but promoted relativism by presenting various religious, cultural and moral positions as equally valid, and thereby interfered with parental abilities to pass on their faith to their children. The SCC did not evaluate the course or these claims, which have been frequently voiced,Footnote ¹¹ but restricted its focus to the claim of interference with parental religious freedom rights.Footnote ¹² The court rejected the parents' argument and found that their right to educate their children in their faith was not compromised by attendance at the school programme. Two judgments were written, one by Deschamps J for seven of the justices, and a concurring one by LeBel J for Fish J. The lower courts had also found against the parents.Footnote ¹³

At the outset, Deschamp J set out several fundamental principles from earlier religious freedom cases:

1. i. The state should remain neutral, so that state sponsorship of one religion is discrimination against others;Footnote ¹⁴

2. ii. State neutrality extends to publicly funded schools, so that indoctrinational religious instruction or exercises are impermissible, although non-indoctrinational programmes are not;Footnote ¹⁵ and

3. iii. The imposition of majority religious practice is an infringement of the religious freedom of minorities as a result of the evolution of minority protection alongside state neutrality, reflecting sensitivity to the multi-cultural make-up of Canada.Footnote ¹⁶

Turning specifically to how a religious freedom claim may be successfully made, Deschamps J reinterpreted Anselem:

1. i. A complainant must show that a belief or practice has a ‘nexus with religion’ and the complainant's sincerity in that belief or practice is sufficient evidence of it;

2. ii. A complainant must prove on the balance of probabilities that the infringement amounts to an infringement of religious freedom; and

3. iii. Some burdens of a trivial or insubstantial nature may be imposed by the state on religion.Footnote ¹⁷

On the application of those principles, the key to the outcome in the case was the burden of proof placed on the parents to prove objectively that the ERC programme interfered with their right to pass on their faith; to say that it did was insufficient.Footnote ¹⁸ In assessing the discharge of that burden, Deschamps J acknowledged more clearly than earlier Canadian courts that, as the courts have removed religion from the public sphere, the secular has increasingly appeared less neutral and more partisan, so that what to some appears neutral might be perceived by others as anti-religious. She further acknowledged that absolute neutrality does not exist and that the best to be hoped for is a state that neither helps nor hinders any religious belief, but shows respect for all, including those without belief.Footnote ¹⁹ This is an important confession by a court showing considerable humility in the task of balancing conflicting claims.

Applying the foregoing propositions to the facts, Deschamps J accepted the course at its word and as found by the trial judge that it did not attempt to indoctrinate but to teach children about various religions and cultures. To the parents' argument that the course confused children by presenting religions on a equal footing, Deschamps J replied that cognitive dissonance was a fact of life in a diverse society, to which children should become accustomed and which they already experienced in the school cafeteria where different food choices were made, or in the classroom where different modes of dress would be seen, or even in the playground where different behaviours would be experienced.Footnote ²⁰ She concluded that the parents had not discharged the burden of proving that the course interfered with their beliefs about passing on their faith and that the course did not infringe their freedom of religion.Footnote ²¹

In a concurring judgment, LeBel J agreed with the requirement of a two-part test for finding an infringement of religious freedom:

1. i. Establishment of sincerity of belief; and

2. ii. An objective demonstration of significant infringement as a result of state action.Footnote ²²

He chastised the trial judge for focusing on the alleged erroneous nature of the parents' belief that the programme interfered with their religious obligations and suggested that the focus ought to be on whether that obligation was actually impacted by the programme. Did the parents discharge their burden of proving that the course infringed their section 2(a) right?Footnote ²³

LeBel J acknowledged the problems with the test of sincerity of not being able to rely on a subjective perception and of the difficulty in assessing the programme itself on the basis of the record before the court: was the course meant to teach children about religious diversity or ‘to get religion out of children's heads’?Footnote ²⁴ He concluded that there was insufficient evidence before the court to determine the true purpose and whether it infringed parental rights. The parents had not discharged the burden of proof. Significantly, he also stated that the possibility of doing so in a future case was not foreclosed with additional evidence.Footnote ²⁵

While neither judgment in the SCC foreclosed a different answer to the question in a future case, the difficulty of reaching such is considerable. How considerable is difficult to gage because of the factual puzzle at the heart of the case as to precisely whether and to what extent the ERC programme interferes with parental religious teaching. The trial judge allowed in very little evidence about the objectives, content and teaching methods associated with the course and LeBel J commented adversely on this in the SCC as well as on the trial judge's improper focus on the accuracy of the parent's professed belief that it was their duty as Roman Catholic parents to pass on their faith.Footnote ²⁶ An incomplete factual record may well have found its way to the top court.

The significance of this is uncertain, given how the court thought it ought to proceed in section 2(a) cases. Even if the ERC programme were explicitly anti-religious, or at least anti-Roman Catholic, the SCC considered that the standard of proof to which the parents were to be held was the ordinary standard of proof in civil actions: that is, they must prove to an objective standard that the course interfered with sincere belief. Prima facie, this is not an unusual burden. Why the parents' counsel did not formulate their litigation strategy to meet this burden of proof probably had much to do with what was widely believed to be the standard established in Anselem: that is, that it is only necessary to plead sincerity, beyond which a court would not look. This perception about Anselem was always wrong.Footnote ²⁷

In Anselem, the SCC found, by a 5–4 majority, that the Jewish complainant's freedom of religion permitted him to build a succah on the balcony of a condominium, notwithstanding the condominium rules that he had signed (which forbade all obstructions or decorations on balconies), the safety of others in the event of an emergency and the contractual rights of others to the enforcement of the rules. In defining freedom of religion in section 2(a), Iacobucci J emphasised personal choice, autonomy, subjectivity and self-definition as key elements and de-emphasised belief in a divine or supernatural power, as well as benchmarks for belief such as existing religious traditions.Footnote ²⁸ The court should not be ‘an arbiter of religious dogma’,Footnote ²⁹ nor concern itself with religious beliefs which, in his view, were by nature ‘fluid and rarely static’,Footnote ³⁰ and of a ‘vacillating nature’.Footnote ³¹

This emphasis on the private individual completed the trajectory for section 2(a) interpretation dating from the first section 2(a) case, R v Big M Drug Mart Ltd,Footnote ³² in which Dickson J (as he then was) counterpoised the individual to the state in order to protect the individual. But once the individual becomes conceptualised as the isolated self in section 2(a) jurisprudence, he or she becomes vulnerable to the state, including in its judicial disguise, which can require the individual to prove sincere belief. Proving sincerity to a secular judiciary which views all religious belief sceptically, indeed as incredible, can be a daunting challenge. But, even when a court accepts sincerity of belief, as in Anselem, the SCC, following earlier section 2(a) jurisprudence,Footnote ³³ thought that trivial or insubstantial burdens on religion were permissible and had to be assessed on a case-by-case basis.Footnote ³⁴ In Anselem, the court found the burden on religious expression to be substantial, without providing reasons or a test for future application. After Anselem, there was clearly the need for a test as well as a requirement to give reasons, as shown by two later, contrasting, cases. In Multani v Commission scolaire Marguerite-Bourgeoys,Footnote ³⁵ a Sikh schoolboy was permitted to wear a kirpan to school, but, in Alberta v Hutterian Brethren of Wilson Colony,Footnote ³⁶ Hutterites were required to be photographed to attain driver's licences, against their religious beliefs. The reasons why one religious minority could be reasonably accommodated but another could not were never stated in either decision, yet the complainants in both sincerely believed in their respective beliefs.

SL is a response to this failure in the sincerity test by requiring complainants to prove why their sincere beliefs ought to be accommodated. Thus, the court reformulated Anselem into a more normal two-part test:

1. i. A claim of sincerity in the professed belief or practice; and

2. ii. Proof that the belief or practice has been infringed by any legal form of proof based on facts that can be objectively established.Footnote ³⁷

Deschamps J provided two examples of cases satisfying the burden of proof: R v Edwards Books and Art Ltd,Footnote ³⁸ which concerned provincial legislation requiring Saturday Sabbath observers to close shop on Sunday, and Anselem, where contractual provisions prohibited structures on balconies.Footnote ³⁹ Notwithstanding their ease of proof by reference to legislation and contract respectively, these examples do not go to the second step of proving a substantial burden, since it is not any infringement that will be prohibited but only those that are not trivial or insubstantial. These inconclusive examples render uncertain what a complainant must show to satisfy the evidentiary burden imposed in SL. On the facts, it may be virtually impossible for the parents to show objectively that attendance at the ERC programme would impair their religious freedom to pass on their faith to their children. There are many reasons why children do not follow parental faith beyond exclusive parental religious instruction in that faith. The formal addition of the second part of the test to Anselem's sincerity requirement may have created a barrier so high that no religious complainant could ever hope to surmount it.

In previous section 2(a) cases, the SCC considered its task to be to balance a section 2(a) claim against conflicting claims pursuant to section 1 of the Charter, which permits courts to appraise section 2 fundamental rights claims as subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Although not expressly framing it in section 1 terms, the SCC effectively balanced claims in SL when it pointed to the purposes of the ERC programme as educating children about diverse religion, self-recognition and the common good, and to the fact that cognitive dissonance was a necessary experience for children in a diverse society. The court did not, however, expressly find these to be countervailing values under section 1 which should prevail over parental section 2(a) rights. Had it done so, some basis for evaluating the claim and the outcome might have been provided, as well as reasons for rejecting the claim. Indeed, the court focused entirely on the section 2(a) analysis, adding an evidentiary burden that few claimants will be able to discharge. Before SL, courts simply accepted the section 2(a) claim,Footnote ⁴⁰ thereby recognising the complainants' freedom of religion, and then evaluated it against section 1 claims. This practice had the advantage of formal acknowledgement and respect for a freedom of religion claim and the requirement for a court to state why that claim should not succeed. After SL, neither advantage is present, and the suspicion that religion is not taken seriously is encouraged. After SL, the entire burden of providing justifications for permitting religious freedom is on the complainant, and the court need only state whether some unknown standard has been met or not. Sincerity is no longer required.

The question then becomes one of the significance of SL for freedom of religion in Canada, since the new burden of proof appears to diminish it further. On the narrow facts of SL, the rights of religious parents exclusively to determine the religious education of their children have shrunk, in so far as they must now be shared with state-directed schools; even all privately funded schools must offer the ERC programme. Whether this is benign or not depends on the answer to the factual puzzle at the heart of the case as to the neutrality of the programme. More broadly, the result is likelier to have a more negative impact on religious minorities than on religious majorities or confident minority groups for whom the burden of proof may be more easily satisfied because their claims may be more persuasively articulated in litigation. This is contrary to the purpose of the Charter, which was originally adopted to protect minorities against a powerful state. Minorities with the least demographic or cultural resonance in the surrounding society may experience greater difficulty in passing on their religious values to their children. Majority religions will suffer less: a Roman Catholic child in Quebec can hardly miss the general social reinforcement of Roman Catholicism through language, architecture, general culture and history, whereas a minority religion child will find no reinforcement of their religious tradition in the wider society. Indirectly, the majority religion will continue to be privileged, even in a province in which state neutrality and laïcité have reached secular dogmatic stature. Only the most cynical observer might wonder if this is what the SCC was really attempting to achieve by the result in SL.

A further effect of the decision may be greater privatisation of religion for both majority and minority religious communities. Public compliance with legislated norms is often matched by private dissent from the norms, as people will look increasingly to family and religious groups for community. Children will learn one thing at school for public purposes and quite another at home or place of worship, thereby learning that hypocrisy may be the price for religious belief and practice. Again, this is not what the Charter was intended to achieve; rather, it was intended to facilitate public expression of difference without sanction. Finally, where the burden of proof is as high as it is in SL, it might be wondered whether the state, in its judicial disguise, is as neutral as it claims to be. An impossibly high burden of proof undercuts neutrality claims and may do more damage to religious people than the programme itself because, for litigation purposes, religion and sincerity are effectively trivialised.

Ironically, prior to the Charter and the section 2(a) jurisprudence, provincial education legislation typically permitted parents to claim exemption from religious exercises and instruction in public schools on both religious and secular grounds. Early section 2(a) cases struck down this legislation at the request of minority religious parents, on the ground that minority religious students should not have to self-identify to gain exemption; this was regarded as discriminatory because majority religious students did not have to do so.Footnote ⁴¹ That a religions programme mandatory for all is a better solution is open to doubt in light of parental requests for exemption in SL, and suggests that other options should be considered, including statutory restoration of exemptions, permitting religious and other private schools to opt out, or simply removing all religions from schools, other than in the form of an optional, purely academic, comparative religion course. When litigation ensues, even reversing the burden of proof so that the government must prove objective reasons for requiring attendance would not suffice because governments should have little difficulty in providing compelling arguments based on the common good resulting from better knowledge and understanding of religious diversity.

In an earlier comment on Anselem,Footnote ⁴² I argued that sincerity was a very slender reed on which to build a freedom of religion jurisprudence. In SL, the SCC may well have proven that observation to be correct for now. The high evidentiary burden placed on complainants in section 2(a) cases by SL continues the judicial trajectory of privatising religion in Canada. The trivialisation of sincerity resulting from that high burden of proof further raises the question of whether sincerity can function much longer as a basis on which to protect religious expression. A more robust judicial perception of the public sphere as a place where religious expression is fully permissible is the one option that Canadian courts have not explored and, given their commitment to removing religion from public places under the rubrics of state neutrality and laïcité, it may be some time before they do. In the meantime, families and places of worship will continue the religious education of their children in the expectation that, in time, the courts will accept that religious belief and conduct truly exist in Canada and will continue to do so.