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Weighing cases and reality, more different than alike? // Illustration by Kaitlin O'Toole

Clashing rights: When religious practice and Canadian law collide

November 25, 2013 — 

The country that welcomed Mennonites fleeing persecution while turning away Jews in grave danger and banning potlatches still struggles to find the right balance in accommodating religious rights, a University of Manitoba human rights expert told fellow lawyers.

Karen Busby

Karen Busby, Law

Professor Karen Busby was among the opening speakers Nov. 22, 2013, at the Pitblado Lectures, the premier annual professional development event for Manitoba lawyers.

She dissected tricky recent Canadian court cases where religious rights clash with government action.

Half of the 10 countries from which Canada draws the most immigrants permit polygamy, Busby said, yet it is a criminal offence in this country. A British Columbia court ruled that the breach of religious liberty is justified. “They found that polygamous marriages discriminate against women,” Busby said, noting that the United Nations encourages countries around the world to abolish polygamy.

More troubling, from Busby’s perspective, is a Supreme Court ruling that Alberta Hutterites who feel it is a sin to be photographed must nevertheless have photos on their driving licences. “There was not much evidence presented on why the government could not accommodate a few hundred people who sought a religious exemption,” Busby said, noting the farmers don’t have public transit alternatives because they live in the country.

She is also concerned that a decision under appeal requiring a sexual assault victim to remove her veil to testify will force some Muslim women to choose between laying a complaint and following their religious beliefs. Busby noted that impressions about witness credibility gleaned from observing facial expressions are unreliable.

Meanwhile in Manitoba, freedom from religion remains an issue, said fellow Robson Hall Prof. Debra Parkes. A parent she knows was recently required to sign a slip if she wanted her child to opt out of grace on a school trip to a Christian camp, despite a Manitoba court abolishing school prayer more than 20 years ago.

“It takes vigilance on the part of parents to ensure that what happens in the case law actually starts happening in the classrooms,” Busby said.

Equality rights lawyer Gwen Brodsky told the sold-out gathering that the loss of the Charter Challenges program previously funded by the Canadian government has put equality rights cases out of reach for most Canadians.

“Now we’re more like other countries accused of having a constitution, but really it’s just on paper.”

Busby said two national equality-seeking organizations she has worked with can now only afford to intervene in a fraction of the court cases they used to take on.

Robson Hall Prof. Sarah Lugtig spoke to the gathering about innovations to increase access to legal services for people living in poverty. “There are no rights if there is no access to justice.”

Her Robson Hall colleague Brenda Gunn also spoke at the event about how lawyers can help implement in Canada the United Nations Declaration on the Rights of Indigenous Peoples.

University of Manitoba alumna Marcia Kran, who recently retired from leading the research division at the Office of the High Commissioner for Human Rights, talked more generally about integrating international law into practice in Manitoba. The day before the Pitblado Lectures, she visited Robson Hall to encourage law students to consider working for the United Nations.



2 comments on “Clashing rights: When religious practice and Canadian law collide

  1. Tuula Heinonen

    These are important topics that require more awareness. It seems that the channels used to discuss these in the past and to challenge laws that do not consider some people’s situations and cultures have been eroded in recent years. I wonder if we can change course.

  2. c wintermute

    While I have no problem with immigration or refugees my deeper concern is regarding a concern see on the internet where when larger populations of a religion live in an area they demand implementation of certain religious customs such as polygamy and Sharia law which Canadians are assuming are protected under our laws. In going to sites regarding this I find that as in the case of Bountiful, BC the authorities often do not enforce these laws.

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