Canadian Charter of Rights and Freedoms, Canadian law, Critical Religion, expert witness, freedom of religion, law, politics, power, R v Welsh, religion, religious freedom, Syndicat Northcrest v Anselem
When contention arises in the courtroom, it is a common practice in many countries to call upon experts to help validate or discredit arguments, made either by the defendant or by the plaintiff. These experts, often professionals or scholars, can use the specialised knowledge gained in their field to clarify any points that may otherwise be misunderstood by the general public or the jury. In the case of conflicts dealing with religious freedom, a priest or other religious official may be invited to offer his or her expertise, but it is often the scholar of religious studies that is called upon. It is he or she that is responsible for provide a balanced, objective viewpoint on a variety of religious practices and beliefs, and to decide whether or not the practices or beliefs in question can be said to be “sincerely religious”.
While it is fairly standard to use scholars’ statements as expert opinions in court, I would like to suggest that this practice produces as many issues as it does advantages. Religious studies scholars can provide an unbiased viewpoint on matters relating to religion, but in doing so they are also participating in a system that reinforces the existence of “religion” as a sui generis category. They are made to speak about “religion” in an authoritative way, which in turn leads the general public to believe that “religion” is a benign descriptive label applied logically to groups of the same genus and not, as critical religionists argue, a historically and culturally specific term with political connotations and a term whose definition is still contested. However, the testimony of scholars of religious studies still serves a distinct and equalising purpose, and prevents the jury from being swayed by inaccurate stereotypes and unhelpful assumptions about particular traditions.
The issues that arise when a scholar of religious studies gives an expert opinion in a legal setting are varied. First, the audience are not specialists, and so the scholar must generalise and use “religion” in a general sense. This lends a notion of stability to the category of “religion”, and reinforces the idea that certain groups, practices and beliefs belong in the category, while others should be excluded. Second, validating whether or not something is or is not “religion” not only serves to reinforce the category in an abstract sense, but also has significant repercussions for those groups whose practices are dismissed as “not religious” and therefore cannot be protected by human rights provisions, such as that of Section 2(a) of the Canadian Charter of Rights and Freedoms.
In addition, the reliance on expert opinions in matters of “religion” implies that the scholar is more qualified to define a practice or belief as “religious” than the practitioner themselves, when the matter of “religion” is otherwise viewed as a personal and subjective decision by the court. The Supreme Court of Canada made a statement to this effect in the landmark case Syndicat Northcrest v. Anselem (2004):
The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions.
Curiously, although the court in Anselem claims that “it is inappropriate to require expert opinions”, expert opinions are still sought out in the very same case. This is because, as religious studies scholar and former lawyer Dr Lori Beaman writes in her book Defining Harm: Religious Freedom and the Limits of the Law (UBC Press, 2008), “[t]he expert voice is heard in religion… and is perhaps most visibly hegemonic in the collusion between religion and law.” (48) It is these experts that “act as gatekeepers in the discursive construction of religion”, determining the boundaries between legitimate and illegitimate religion. (48) It has been historically deemed important by courts in Canada to determine that a “religious” belief is sincere, and not capricious or artificial. Therefore, the voice of the scholar of religious studies has the power to legitimise particular groups as “truly religious”; yet this decision is made with an illusion of objectivity, using a contested and unstable category as its basis.
Expert opinions are, however, still useful in the case of practices that while sincere, are easily misunderstood or seen as strange. This is often the case with new religious movements or syncretic religions. I will use another Canadian case to demonstrate this advantage. In the Supreme Court of Ontario case R v Welsh (2007), the court attempts to determine whether or not Obeah (a collection of folk practices, religion and sorcery originating in West Africa and flourishing in the Caribbean) can be considered a belief system or “religion”. The entire case rests on this decision, as the claimant can only argue that the actions of the defendant infringed on their right to freedom of religion if their practices are validated as “religion”. Helpfully, court aligns itself with the stance in Anselem, and sees itself as “reject[ing] a narrow, overly-precise definition of religion in favour of a broad perspective that could conceivably capture an array of beliefs that, like Obeah, fall outside of well-recognized religious boundaries.” (Para 28) The court recognizes, with the help of expert opinions, that “Obeah is a religious belief system that meets the Supreme Court definition of such in [Anselem] and thus warrants s.2(a) protection.” (Para 29)
In light of this information, should Religious Studies scholars provide expert opinions in court cases relating to religious freedom? I am still unsure what is to be done with the practice. While the instability of the category of “religion” gives the scholar (and thus the court) the ability to validate or dismiss practices based on a contested definition, the use of expert opinions can also be (and often is) beneficial to lesser-known traditions, and even to groups who regularly experience discrimination or prejudice, such as Islam. To cease the practice would leave these groups in a vulnerable position, but to continue advising the court under the illusion of objectivity may lead to misguided decisions. The issue is complex and multi-faceted, and it is my intention to treat the topic more extensively in my further research.