Upon taking up his prestigious position, Justice Raza turned up at court wearing traditional Indian dress called “sherwani” (he wore a gown over it of course, but the propah, stiff upper lip British judges were taken aback and resisted the idea of native dress being worn to court) that day Justice Raza argued his first case and won the entitlement for Indians to wear their national dress to court.  

This was a cultural tradition that came into conflict with the prevailing British law. Today, a century later, remnants of British law still remain in secular India. Much of the 'Islamic law' of the Indian sub-continent is in fact a British colonial-inspired construction and codification, and as such, is more appropriately called 'Anglo-Mohammadan law India’s secular law vs Muslim personal law, are the subject of immense discussion and debate about the benefits or negatives of a 2-tier legal system.  

India, which calls itself the world’s largest democracy, comprises a rich cultural and religious mosaic, not very different to what we have in Canada on a much smaller scale. studying Canada’s legal system which is based on  British common law with a touch of French civil law, 
it would be simplistic to say that the judicial system worked without any glitches many decades ago when Canada was primarily WASP, and that religion vs law conflicts are the direct result of immigration patterns. The larger Canadian Christian community, divided into its’ various denominations has also faced some challenges with religion and law. The International Religious freedom report (2003)[1] says there is no state religion in Canada but an estimated 74.6% of the population belongs to Christian denominations. With regards to religion in Canada, Wikipedia tells us: While the Canadian Government’s official ties to Christianity are few, it more overtly recognizes the existence of God. Both the preamble of the Canadian constitution and the anthem in both languages refer to God.

While taking our oath of allegiance, immigrants learn that the Canadian charter of rights and freedoms protects the religious beliefs of all Canadians. This is one reason why many people escaping religious persecution in their native countries, find refuge in Canada as a safe haven. 

I think it’s important to bring your attention to the fact that when Canadians visit or work in countries outside Canada, they are compelled to follow the law of those lands. E.g. Singapore has strict laws and penalties for a variety of actions that might not be illegal or might be considered minor offences in North America.  These include jaywalking, littering, and spitting.  

There are issues of covering in parts of the Arab world and I know a few cases of people who have suffered major human rights infractions in countries abroad, but found that the law of that land takes precedence over North American legal systems. Coming back to religious freedom in Canada, Dr. Chris Kempling[2], a registered clinical counselor and teacher in BC, says that although Canada does have religious freedom, that freedom is under assault.  

In his report to a UN Commission on Human rights in 2005, he said that the two major areas of conflict between religious freedoms and government policy in Canada are abortion and homosexuality. He cited a case where 8 Christian members of a group called Operation Rescue, were arrested and sentenced to jail terms for what he called “peacefully protesting outside an abortion clinic”  

Furthermore, aboriginal communities have also existed outside the realm of the mainstream legal system because the Indian act takes precedence over the charter in native reserves. This obviously has created some ripples and ongoing challenges to both the judicial system and the aboriginal community Last week (on sept 29) there was a special on CBC radio about native women who have no legal claim on their land title if they marry outside the band I’m going to come back to this to tell you how they are working at resolving this problem The Intl religious freedom report also citied a couple of cases about what they perceive as restrictions on religious freedom for communities that are mainstream in Canada.  

A condo association in Montreal barred a group of Orthodox Jewish families from constructing temporary huts on their balconies to celebrate the fall festival of Sukkot.

In another case, a local municipality refused to rezone land upon which a group of JW wished to build a church hall because the land would then be exempt from property taxes

These examples just touch upon the kinds of issues that have come up in the past as a challenge between law and faith or culture and beg the question:  

Is Canadian pluralism a blessing or a burden?

Let’s take a look at some of the recent situations that have arisen as conflicts between religion and law during the last decade  

We know from statistics[3] that the rise of immigrants into Canada coincides with rise in religious practices and beliefs, the highest concentration of immigrants being found in Vancouver, Montreal and Toronto.

 About 40% immigrants (4 in 10) who came to Canada between 1982 and 2001 had a high degree of religiosity compared to 26% of people born in Canada.  

There are considerable variations in the levels of religiosity among immigrants who come from different countries.

Hi levels of religiosity are most prevalent among immigrants from South Asia i.e. India and Pakistan,  as well as immigrants from Philippines and the Caribbean  

The Sikh community in Canada has faced challenges over two main topics: one the wearing of a turban as part of an official uniform and second, carrying the kirpan – a ceremonial dagger in public places like schools

My Sikh lawyer friend from Mann law, informs me that the turban issue comes up time and again and has not been incorporated as law but is dealt with as an issue of individual rights. The RCMP and Air Canada for example allow the sikh turban as part of their uniform  

In the same essence, Mr.Mann says that if it’s an issue of Safety vs faith , then of course safety takes precedence. I’ll return to the kirpan issue later.

 With JW there is the ongoing concern about blood transfusions.

At a more grass roots level – Junelle, my JW colleague refused to work on any document that had the word church or dealt with a religious issue outside her faith.  

This was not a problem while she worked with the government because the government is extremely politically correct and also works overtime on accommodation of minority rights.

However in the private sector, this could become an issue if the employer decides that this is part of her job description and she is forced to choose between her job and her faith restrictions.

In the past two years, the debate over faith based tribunals has created waves in Ontario.

The existence of religious tribunals or Beth Din in the Jewish community is no secret, but there have been rare cases of direct conflict with Canadian 

In fact, I believe religious tribunals were meant in some ways to ease the burden of 
the legal system

I won’t go into the controversy surrounding sharia tribunals because we’re spending time on that tomorrow, but let me quote you a thought provoking headline from New York when the sharia debate was at its height.  

It read: When the Quran speaks, will Canadian law bend?

If the term Quran is substituted with any other religious book, the point would still be valid.

This brings me to a critical question that we all have to ask today  

Do people of faith park their religion at home when they come to work or do they carry it with them as a way life?

Chris Kempling says “I am a Christian seven days a week, both on the job and off the job…”.  

 think many people of faith can relate to this and believe that their religion is a way of life for them, which can’t be put on the shelf in the morning.

Allow me address some of the issues relating directly to Muslims  

Accommodation for prayer and head covering are two ongoing challenges in the Muslim commun

Before I go there, it’s imperative to note the difference between faith and culture.

Faith is religious belief which is an integral part of the Canadian way of life and which for many people, can’t be compromised.

Samuel Huntington, controversial author of Clash of Civilizations says in a 2006 interview with the Pew Forum on Religion and Public Life[4], “religion is vitally important because it provides the framework in which people look out at the world”. 

Huntington makes another interesting point. He sees religion as one component of a people’s culture but goes on to explain that Western culture emphasizes individual rights, while other cultures put emphasis on community, family and social factors.

But I see culture as mostly excess baggage which evolves with time and can also be discussed, diluted, debated or discarded through an occasional garage sale without any loss of face.

More importantly, people tend to be less passionate about culture.  

However, critical to our discussion today is the fact that sometimes the fine line between faith and culture gets smudged.

This is why I believe it’s important for those working in the legal system, to be aware of the nuances between faith and culture. This applies to intake workers, case description writers, mediators, legislators and judges.

Let’s look at an example.  

For Muslims it’s important to have prayer space because it’s religiously incumbent on them to pray five times a day.

By law, schools and work places in Canada have a legal obligation to accommodate various faith groups’ if the groups request is reasonable and doesn’t create undue hardship on the 
school or employers.

At terminal one of Pearson airport there is a multifaith chapel for employees and travelers, in which the largest space is for Muslims - as demographics dictate.

This is reasonable accommodation.

However a Muslim employee has filed a case against the airport because she wanted to pray anywhere she chose, including a public office space frequented by passengers on a regular basis

Being unaware of the nuances of the faith, the airline apologized to the employee who, I believe got away with making an unreasonable demand due to her employers lack of knowledge about her faith and the law.  

I was asked to offer my opinion on this issue. This is what I said

My faith dictates, that in exercising my religious freedom, I must not encroach on the rights of others or cause a public nuisance. In short it’s better for me to pray at home rather than on the subway platform

So for e.g. even though it may be prayer time, stopping my car on the 401 to pray, is not legitimate – don’t look surprised – someone actually did this and when the police stopped them they used the freedom of-religion-card.

Sometimes people mis-use their religious freedom to mis-lead the law e.g. the use of part of a house as a religious temple or religious space to avoid paying taxes!

I have to confess I overheard this enlightening discussion on the GO train!

Sometime culture and tradition become very confusing.

 I just heard a case where a newly arrived Hindu family were celebrating a wedding and lit a fire in the middle of the hotel banquet hall because circling the fire is a religious rite in a Hindu marriage. After the sprinklers went off and the fire trucks arrived, the sheepish family apologized to the hotel and asked that a case not be logged against them as they didn’t know

If a South Asian woman, convicted of crime came to court and refused to make direct eye contact with the judge, some people might consider her to be shifty-eyed and therefore guilty - whereas it is purely a cultural phenomenon.

In fact I’ve been told that for a Muslim woman, I have amazing eye contact – I think it was meant as a compliment, but I’m not sure.

Let’s spend a few minutes on the issue of head covering which exists in many communities.

Some years ago I read the case of a Jewish man who insisted on wearing a skull cap in court, and the Muslim who wore a prayer cap.

Similarly, Muslim women have the right to wear a head scarf as part of their religious belief. Obviously, in a country where women are lobbying to walk bare breasted, a head scarf doesn’t cause a security risk or brain damage.

I have to admit though that I’ve never seen so many governments terrified of a small piece of cloth as I have during the European debacle when headscarves were banned.  

So were other religious symbols which to me, speaks of lack of respect for human rights. I feel fortunate to be in a country like Canada where we are at least discussing the intersection of faith and the law.

Following along on the discussion about diverse faith and cultures, if a Muslim woman were to keep her face covered and not allow her photo on a driving licence, or show her face at immigration while traveling internationally, this could become a security risk.

However, it doesn’t have to be because most Islamic experts agree that a full cover from head to toe, especially with the face fully hidden, is not religious but cultural.

There could be arguments about other interpretations, but I’ll address that later.

Let’s talk solution.

I believe that the place of religion in the Canadian judicial system is not open for debate since Canada is a secular country. The Law does not discriminate on the basis of religion – there should be one law for all because all Canadians are free to exercise their religious rights under 
the charter.  

Should secular law established by the majority bend itself to the peculiarities of 
religious minorities?

If Canadian law were to bend for religion and culture, how will it come to terms with the variations in interpretation of both faith and culture that exists in many communities? Even the issue of full covering will bring many variations in interpretation.

Having said this, I do believe that awareness and education about the multicultural and multifaith mosaic that is Canada today, is an inherent part of the Canadian democratic system and it’s a two-way street.

A consultative process in which the legal system can work with experts and grass roots people from different faiths and cultures, would be a good place to begin.

I stress grass roots because I know for a fact that I’d like to see this consultation take place not only with religious experts or clergy, but with the citizens who face these challenges and are concerned about the future of Canada.

As new communities evolve, they must work within their own circles to find workable solutions and not let the entire burden fall on the Canadian system. They should be able to provide the judicial system with advice on religious and cultural issues removing barriers of ignorance which lead to charges of racism and discrimination.  

For e.g. usury or interest is not allowed for Muslims but jurists haven’t come up with a viable game plan. Most people own homes and pay mortages. So somehow they have come to terms with the issue of interest. They need to debate and discuss other religious issues and find ways to make them work.

One positive example is that of the Jewish community. They took an important issue like the GET and had it incorporated as part of the divorce act in Canadian law to address the needs of Jewish women

For the Sikhs, the discussion about the kirpan could be to see if it can be carried as a symbol, maybe a plastic one.

The native community is looking at ways to protect the rights of their women  so the federal government is working with native leaders and elders to protect both their human rights 
and self governance

As a result of these consultations, sometimes there are hot buttons in a religious community that need to be incorporated as part of Canadian law similar to the incorporation of the Jewish GET into mainstream law  

For example, some religious zealots will use the charge of blasphemy to silence those who don’t agree with them. While this does not come under any written law, it’s an ideology that can harm Canadians in their communities and make it impossible for them to continue as part of that faith. This is also a slur against democracy and freedom of speech.

In this case, the community is appealing for the accusation of blasphemy and apostasy to be stipulated as a hate crime under Canadian law and a press conference is planned for next week.

Let me end on a positive note

Canada is being observed on the international stage at many levels.

One aspect is Canadian pluralism. We are setting the precedent of how Canada deals with the law and minority religious communities. 

I know this for a fact because I’ve traveled to many countries, carrying the Canadian message of pluralism.  From the Andover Newton School of theology to Barcelona and back to Harvard Pluralism – they listen and they respect.

I hope we will continue to keep the doors open for dialogue, discussion and a healthy debate

Thank you.