How Hard is it to Accommodate Religious Practice?

The past few weeks have been difficult ones in Canada when it comes to the accommodation of religious belief and practice. 

The Town of Hérouxville in Quebec has published “Standards” for its community.  While these “Standards” purport to welcome all people without discrimination, the town’s stated goal is to inform new arrivals into the area how they can integrate into (or perhaps conform with) the community. 

There are some obvious standards based on Canadian criminal law. These include the statement that Hérouxville considers “killing women in public beatings, or burning them alive” are not part of their community standards.  That seems reasonable. 

However, there is also a “standard” that patients in hospitals are offered “traditional meals” and another indicating that in schools, “children cannot carry any weapons … symbolic or not.” 

On the one hand, standards that protect the lives and safety of people in the community are laudable.  On the other, some of these standards appear to communicate a refusal to accommodate cultural or religious differences.  While precluding students from carrying weapons usually makes perfect sense, that particular standard appears to be a response to the Supreme Court of Canada decision in Multani (March, 2006).  In that decision, the Court permitted a Sikh student to carry a kirpan, or ceremonial dagger, because of the need to accommodate his religious belief and practice.  A standard forbidding “symbolic” weapons portrays a negative message regarding the Sikh religious practice of carrying a kirpan.   

Perhaps even more troubling is the standard regarding hospital food.   How does it harm the community if a patient in a hospital requires a non-traditional meal to accommodate his or her religious beliefs?

Despite purporting to invite all to live there without discrimination, Hérouxville is telling the world that religious accommodation is not one of the standards to which is ascribes.    Those in the religious majority may be able to identify with Hérouxville.  Those in the religious minority may not feel welcome at all.  Religious freedom in our country requires that we accommodate religious beliefs and practices, at least to the extent that they do not pose unmanageable health or safety risks on the rest of the population.

And that brings us to the other recent, and more perplexing, event of note dealing with the extent of appropriate religious accommodation.  As has been reported in the media, the parents of the sextuplets born in Vancouver are Jehovah’s Witnesses and, based on their religious beliefs, refuse to approve blood transfusions for their new children.  Two of their children have died, although the reason for their deaths is not known.

The B.C. government has now obtained court orders to seize three of the surviving sextuplets to ensure that they get blood transfusions if deemed medically advisable. 

The father of the sextuplets has sworn an affidavit in the Court proceedings concerning the seizure of the children by the government.  He explains that during his wife’s pregnancy, they were given the opportunity to abort some of the foetuses and they refused because of their religious beliefs.  He also says that immediately prior to the children’s birth, doctors advised that they support parents’ decisions not to resuscitate children born so premature.  The parents decided to resuscitate the children at birth.  This appears to be a case of parents that very much want their children to live.

The father’s affidavit is clear that the refusal to approve blood transfusions was religiously motivated by a desire to obey God.  The father describes leaving the hospital in distress when “they were violating [their] little girl” with a blood transfusion.  It must be horrific to decide between obeying what you believe God mandates and medical care for your children.  

The parents’ religious belief may seem peculiar or even manifestly wrong to many.  However, it appears to be a deeply held belief and the parents appear to be suffering intensely because of their beliefs. 

The difficulty is that the children are not of an age to choose their own religious beliefs.  The Courts in Canada have protected the constitutional rights of parents to rear children according to their religious beliefs.  However, the extent of this right is not without limits. 

In a 1995 decision concerning a similar refusal by Jehovah’s Witness parents to agree to a blood transfusion for a child born prematurely, a majority of the Supreme Court of Canada concluded that the right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is a fundamental aspect of freedom of religion.  They then held that the imposition of medical treatment was a justified breach of religious freedom.

These are difficult cases, but ones in which the Courts have held that the child’s right to life trumps the parents’ right to freedom of religion.  At least one media commentator on the topic stated that since we do not live in a theocracy, this result is inevitable.  That is a superficial analysis that does not accord the parents with appropriate respect and toleration.  It also undermines Canada’s proud history of accommodating religious practices that seem odd or untenable to the majority.  The issues are profound and should be treated that way.

There is a fine line between religious intolerance and appropriate accommodation.  Hérouxville has exhibited a level of intolerance by setting standards that appear to interfere with the need for appropriate religious accommodation.  That is not admirable in our society. 

Yet occasions do arise in which interfering with religious practices may be justified.  The case of the sextuplets reminds us that the appropriate limits on religious accommodation are extremely difficult to delineate.

If the surviving sextuplets truly required blood transfusions to save their lives, many would agree that the parents’ religious beliefs could no longer be accommodated.  Even if this is the right conclusion, as a society we must remember and recognize that these parents are suffering.  They have had to deal with something that Abraham faced but that most of us will fortunately never have to grapple with: choosing between what you believe is obedience to God and life for your children. 

These situations remind us that limits to religious accommodation should be made with caution, bearing in mind that respect for perspectives other than one’s own is at the cornerstone of religious freedom in Canada.

This article was written by Kevin L. Boonstra, a lawyer who practices in constitutional law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.