Protection of religious views and behaviours

[Grey Fox]

Passport Canada won't even let you smile. No Colander or hats or anything if we can't smile.

[Malthus]

In Canada at least we don't engage in your first or second steps.  It is unfortunate Malthus led the discussion down that path.

Okay, I get it - you are trolling me. Well done. 

Its not a troll.  Go back and read the Kirpan case.  It is not a question of weighing the religious belief at all.  The only questions are whether the belief is sincerely held and whether there is a significant infringement of that belief.   There is no analysis of the importance of the belief.

I am not questioning the Kirpan case - I am questioning your repeated assertion about what I said.

[Valmy]

Well he is right as to the impression it gave me, for what its worth.

[sbr]

It is only in scenario 2 that the issue of a "religious exemption" comes into play, and a Sikh is treated differently than (say) a Pastafarian.

Why?

It's how interest-balancing works: the trier of fact has to determine whether the interest of the person wanting the exemption weighs more heavily than the interest of the government in maintaining the integrity of the rule.

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

How is this determined? By the "reasonable person" test, which is often used in Canadian law to determine things that cannot easily be measured by scientific evidence.

[Valmy]

Yes but he did not make that clear why that would be.

And hey sbr, how is it going?

[garbon]

So it encourages people who lie (or are insane) and discourages people who are honest (and are sane).

?

If a person wants to do something that the gov't could reasonably accommodate then it would make sense for a person to call on sincerely held religious belief to support an application for an allowance.

[Martinus]

So it encourages people who lie (or are insane) and discourages people who are honest (and are sane).

?

Well, if I wanted to wear a hat in my license picture I would be better off if I lied and said this is because of my sincerely held religious belief than if I told the truth and said I just want to have a license picture wearing a hat.

[Martinus]

By the way I loved your video about the people worshipping the picture of the horse.

Yes, it was Onion/Clickhole at its best.

http://www.clickhole.com/video/all-religions-are-beautiful-1543

[Malthus]

Sure you did.  In your example you preferred one religious belief over another.  That simply does not occur in the legal analysis.  You have conflated and mischaracterized important separate parts of the analysis.

I deliberately ommitted steps of a legal analysis ... the end result of which is, in effect, an interest-balancing exercise.

Your conclusion is wrong.  That is what led Valmy to correctly question your view and most problematically led Marty (who apparently knows nothing about the legal concept of freedom of religion) to come up with his three step analysis.

By the time we get to the Balancing of interests the Court assumes the religious belief is important to the person professing the belief.  The balancing actually has very little to do with the religious belief.  Instead the analysis turns on an analysis of the thing which interferes with the religious belief such as identifying the objective, determining whether the objective is met by the interference (the step the Kirpan case failed to establish) whether there is minimal impairment to obtain the objective, etc.

Gah. The "interests" I was talking about where the interests in wearing a particular hat. Yes, conceded, the case breaks the analysis down differently, into stages. But ultimately it is an "interest balancing" test! 

The first two stages simply establish that there is a violation of a Charter right, as per this individual. Then, once that is established, the balancing takes place. The Pastafarian has no "interest" to "balance" because the first two stages of the test would establish pretty conclusively that there has been no Charter violation in his or her case, and so no need for a Sec. 1 analysis.

We do not actually disagree on this!

I take it you are conceding the point about claiming I "preferred one religious belief over another"? 

[crazy canuck]

So it encourages people who lie (or are insane) and discourages people who are honest (and are sane).

?

If a person wants to do something that the gov't could reasonably accommodate then it would make sense for a person to call on sincerely held religious belief to support an application for an allowance.

I suppose that could be attempted but that is the very thing the legal test is designed to weed out.  As a lawyer I would have expected Marti to understand the importance of evidence.

So it encourages people who lie (or are insane) and discourages people who are honest (and are sane).

?

Well, if I wanted to wear a hat in my license picture I would be better off if I lied and said this is because of my sincerely held religious belief than if I told the truth and said I just want to have a license picture wearing a hat.

And it would take very little effort to find the evidence that your assertion was not sincere.

[Martinus]

And it would take very little effort to find the evidence that your assertion was not sincere.

How would one go about proving that?

[garbon]

What evidence would you easily find, CC?

[crazy canuck]

Gah. The "interests" I was talking about where the interests in wearing a particular hat. Yes, conceded, the case breaks the analysis down differently, into stages. But ultimately it is an "interest balancing" test! 

Double Gah

It isn't ultimately a question of balancing.  The pastafarian never gets to the question of whether the infringement is justifiable because there is no sincere belief and therefore there is no need to then inquire whether the restriction put on him is justified. 

And you certainly did suggest that there is a judgment about whether some religious beliefs are more defensible than others.

A Pastafarian's "interest" in wearing a colleander is, to most reasonable people, not the same weight and value as a Sikh's "interest" in wearing a turban. Therefore, in the interest-balancing exercise, it is more easily overbalanced by the goverment's interest in maintaining the integrity of the rule than the Sikh's.

[Malthus]

Yes but he did not make that clear why that would be.

And hey sbr, how is it going?

My mistake. Next time, I will quote Supreme Court cases. 

The point is that, ultimately, the Pastafarian's "interest" in wearing a coleander carries no weight. CC claims I said this was because Pastafarianism is inferior to Sikhism or some such invention. I did not say that, and that isn't the test.

[crazy canuck]

What evidence would you easily find, CC?

The fact that he is often proclaims himself to be an atheist.  The fact that the only religion he has believed in has no religious requirement that he wear a hat. 
You and Marti seem to think that a court will simply take the word of the person claiming the religious belief in the absence of any supporting evidence.  That isn't how it works.