¹ See Campbell, Angela, “Bountiful Voices,” Osgoode Hall Law Journal 47 (2009): 183–234CrossRefGoogle Scholar; Van Praagh, Shauna, “The Chutzpah of Chasidism,” Canadian Journal of Law and Society 11, no. 2 (Fall 1996): 193–216CrossRefGoogle Scholar; Saris, Anne and Potvin, Jean-Mathieu, “Canadian Muslim Women and Resolution of Family Conflicts: An Empirical Qualitative Study (2005–2007),” in Law and Religion in the 21st Century: Relations Between States and Religious Communities, ed. Ferrari, Silvio and Cristofori, Rinaldo (Surrey: Ashgate Publishing Limited, 2010), 337–47.Google Scholar For an overview of qualitative scholarship emerging from law faculties, see Webley, Lisa, “Qualitative Approaches to Empirical Legal Research,” in The Oxford Handbook of Empirical Legal Research, ed. Cane, Peter and Kritzer, Herbert M. (Oxford: Oxford University Press, 2010), 926–50.Google Scholar

² Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551.

³ Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256.

⁴ Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

⁵ “Understanding the Kirpan,” World Sikh Organization of Canada, accessed August 27, 2014, http://worldsikh.ca/page/understanding-kirpan.

⁶ Ibid.

⁷ Stoker, Valerie, “Zero Tolerance? Sikh Swords, School Safety, and Secularism in Québec,” Journal of the American Academy of Religion 75, no. 4 (2007): 9.CrossRefGoogle Scholar

⁸ Other notable cases involving religious issues decided in the last twenty years include R v NS, 2012 SCC 72, [2012] 3 SCR 726, where the Court set guidelines for determining whether a sexual assault complainant can wear a niqab while testifying, and SL v Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235, which held that a mandatory public school course in “Ethics and Religious Culture” did not violate a student’s religious freedom. The Supreme Court had not decided these cases when the study began, and they were excluded on this basis. The decision to exclude Bruker v Marcovitz, 2007 SCC 54, [2007] 3 SCR 607, holding that the failure to provide a religious divorce is compensable in damages, was more complicated. Ultimately, I excluded this case because it did not fit the pattern of a minority group seeking an exemption from a generally applicable policy. For similar reasons, I excluded B (R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, 21 OR (3d) 479, which upheld a wardship order over an infant when her parents refused blood transfusions on the basis of their religious beliefs.

⁹ See Ryder, Bruce, “The Canadian Conception of Equal Religious Citizenship,” in Law and Religious Pluralism in Canada, ed. Moon, Richard (Vancouver: UBC Press, 2008), 88Google Scholar: Religious individuals have “a right to participate equally in the various dimensions of public life without abandoning the beliefs and practices their faith requires them to observe.”

¹⁰ Irving, Helen, “Citizenship, Statehood, and Allegiance,” in Managing Diversity: Practices of Citizenship, ed. Brown, Nicholas and Cardinal, Linda (Ottawa: University of Ottawa Press, 2007), 64, 61.Google Scholar

¹¹ Berger, Benjamin L., “Belonging to Law Religious Difference, Secularism, and the Conditions of Civic Inclusion,” Social & Legal Studies (forthcoming, 2014).CrossRefGoogle Scholar

¹² Ibid., 14.

¹³ Taylor, Charles, “Democratic Exclusion (and Its Remedies?),” in Citizenship Diversity & Pluralism: Canadian and Comparative Perspectives, ed. Cairns, Alan C.et al. (Montreal: McGill-Queen’s University Press, 1999), 267.Google Scholar There is social psychology literature supporting this perspective. Tom Tyler has found that individuals’ propensity to follow rules is linked to their views on the legitimacy of the rule-setting authority. Further, “the primary impact of experience on views about the overall legitimacy of authorities involves judgments about how one is treated, not judgments about gain or loss… [P]eople voluntarily defer to authorities if they are given evidence that they are valued and respected members of the groups those authorities represent.” Tyler, Tom R., “The Psychology of Legitimacy: A Relational Perspective on Voluntary Deference to Authorities,” Personality and Social Psychology Review 1, no. 4 (1997): 326, 336.CrossRefGoogle ScholarPubMed But see Simon, Dan and Scurich, Nicholas, “Lay Judgments of Judicial Decision Making,” Journal of Empirical Legal Studies 8, no. 4 (December 2011): 709–27CrossRefGoogle Scholar for some findings signalling the importance of outcomes.

¹⁴ Taylor, “Democratic Exclusion (and Its Remedies?),” 270.

¹⁵ Ibid., 274–75.

¹⁶ Taylor, “Democratic Exclusion (and Its Remedies?),” 278.

¹⁷ Sossin, Lorne, “God at Work: Religion in the Workplace and the Limits of Pluralism in Canada,” Comparative Labor Law & Policy Journal 30, no. 3 (2009): 485–86.Google Scholar

¹⁸ Multani, supra note 3 at para 78.

¹⁹ [1996] 1 SCR 825, 171 NBR (2d) 321, para 42 (emphasis added). See also Zylberberg v Sudbury Board of Education (1988), 65 OR (2d) 641, 52 DLR (4th) 577 (CA), 656–7 (emphasis added):

²⁰ Bennett, John W., Hutterian Bretheren: The Agricultural Economy and Social Organization of a Communal People (Stanford: Stanford University Press, 1967), 32Google Scholar; Esau, Alvin, The Courts and the Colonies: The Litigation of Hutterite Church Disputes (Vancouver: UBC Press, 2004), 6–7.Google Scholar

²¹ Wilson Colony, supra note 4 (Wilson Colony Factum at para 1).

²² Litigant 2 Interview.

²³ Lawyer 3 Interview.

²⁴ Litigant 1 Interview. There is, of course, a real possibility that this narrative is coloured by hindsight bias.

²⁵ Ibid.

²⁶ Litigant 2 Interview.

²⁷ Ibid.

²⁸ Litigant 1 Interview; Lawyer 2 Interview; Lawyer 3 Interview.

²⁹ Litigant 1 Interview. It is an interesting oddity of this case that a student who sought inclusion in a secular, public, French-language school wound up being educated in a private, English-language, confessional school whose faith he did not share.

³⁰ Litigant 1 Interview.

³¹ See Gaudreault-Desbiens, Jean-François, “Religious Challenges to the Secularized Identity of an Insecure Polity: A Tentative Sociology of Québec’s ‘Reasonable Accommodation’ Debate,” in Legal Practice and Cultural Diversity, ed. Grillo, Ralphet al (Surrey: Ashgate Publishing Limited, 2009), 151–75.Google Scholar

³² Multani (tuteur de) c Commission scolaire Marguerite-Bourgeois, [2002] JQ No 619 (Qc SC) (QL), para 25.

³³ See also Moon, Richard, “Government Support for Religious Practice,” in Law and Religious Pluralism in Canada, ed. Moon, Richard (Vancouver: UBC Press, 2008), 221.Google Scholar

³⁴ Litigant 1 Interview.

³⁵ Ibid.

³⁶ Lawyer 3 Interview (emphasis added).

³⁷ Litigant 1 Interview; Lawyer 3 Interview.

³⁸ An example of this image of public schools is found in Multani, supra note 3 at para 76. Justice Charron held for the majority: “Religious tolerance is a very important value of Canadian society… it is incumbent on the schools to discharge their obligation to instil in their students this value that is… at the very foundation of our democracy.”

³⁹ Litigant 2 Interview (relent = whiff).

⁴⁰ Lawyer 1 Interview.

⁴¹ Litigant 2 Interview.

⁴² Ibid. The image of Khomeini is used here, I believe, as an archetype of fundamentalism. While I acknowledge that the reference may raise other potentially troubling issues regarding the use of this image or of Iranians more generally, those are beyond the scope of this piece.

⁴³ I believe that inclusion and integration are related but distinct concepts. There may be occasions where immigrants are integrated without feeling included, or vice versa. I use the term integration here because it is the term the interview participant used.

⁴⁴ Litigant 2 Interview.

⁴⁵ Ibid.

⁴⁶ Expert Witness 1 Interview.

⁴⁷ Litigant 2 Interview; Lawyer 1 Interview.

⁴⁸ Litigant 4 Interview.

⁴⁹ Litigant 3 Interview.

⁵⁰ Litigant 4 Interview. The litigant noted that this practice was not consistent among all Hutterites in all kinds of elections.

⁵¹ See Canadian Multiculturalism Act, RSC 1985, c 24 (4th Supp), ss 3(1)(g), 3(2)(b), 3(2)(e).

⁵² In addition to the passages cited above, see Canadian Civil Liberties Assn v Ontario (Minister of Education) (1990), 71 OR (2d) 341, 65 DLR (4th) 1 (CA) at 363; Multani, supra note 3 at paras 71, 78; Amselem, supra note 2 at paras 87, 177; Wilson Colony, supra note 4 at paras 90, 130.

⁵³ Wilson Colony, supra note 4 (Wilson Colony Factum at para 1).

⁵⁴ Litigant 4 Interview.

⁵⁵ Edwin L. Pitt, “The Hutterian Brethren in Alberta” (master’s thesis, University of Alberta, 1949), 103, citing an 1899 Report of the Committee of the Honourable Privy Council. Though this report was made subsequent to the initial communications between the Canadian government and the Hutterites, the phrasing helps explain the government’s motivation for encouraging Hutterite immigration.

⁵⁶ Victor John Peters, “A History of the Hutterian Bretheren” (Ph.D thesis, Georg August- Universität zu Göttingen, 1960), 158–59 citing the records of E.A. Fletcher, QC, Winnipeg, solicitor for the Hutterians, letter dated 17 October 1899. Both Peters and Pitt draw on a collection of documents assembled in VJF Zieglschmid, Das Klein-Geschichtsbuch Der Hutterischen Brüder (Philadelphia: Carl Schurz Memorial Foundation, 1947).

⁵⁷ Peters, “A History of the Hutterian Bretheren,” 158–59.

⁵⁸ Ibid.

⁵⁹ Pitt, “The Hutterian Brethren in Alberta,” 105, citing Order-in-Council PC 1676, 12 Aug 1899.

⁶⁰ Ibid., 27.

⁶¹ Bennett, Hutterian Bretheren: The Agricultural Economy and Social Organization of a Communal People, 32; Peters argues that the need for farmers stemmed from Canada’s own involvement in the war: “Not the least of Canada’s contribution to the war effort was her regular transport of food to Great Britain and the allied European countries. Consequently, when the Hutterian brethren were looking for a new home, the Canadian immigration officials did ‘what they could to encourage the Hutterite immigration’ to Canada”: Peters, “A History of the Hutterian Bretheren,” 157.

⁶² Litigant 4 Interview; Wilson Colony, supra note 4 (Exhibit B to the Affidavit of Samuel Wurz, Affirmed 10 August 2005, Appellant’s Record, vol 2 at 204).

⁶³ Peters, “A History of the Hutterian Bretheren,” 160, citing Letter of 7 February 1918 from Office of the Deputy Minister of the Interior, Ottawa, to Michael Scott, Winnipeg.

⁶⁴ Before the Supreme Court, counsel for the Wilson Colony argued that “[t]he religious objector must also understand that they are part of this society, and the fact that they have a right of freedom of religion does not translate into their religious freedom allowing them to have a right to live outside of the society”: Wilson Colony, supra note 4 (Transcript of Oral Argument, K. Gregory Senda for Wilson Colony, at 46). He later explained that the Wilson Colony members volunteer as firefighters in their area and believe they have a duty to obey civic authorities (at 47–48). This illustrates the complexities of Hutterite relations with others. Though litigant participants maintained that they sought isolation, the Hutterites nevertheless participate in various exchanges with non-Hutterities.

⁶⁵ Multani, supra note 3 at para 76.

⁶⁶ Amselem, supra note 2 at para 87.

⁶⁷ On congruence, see Minow, Martha, “Pluralisms,” Connecticut Law Review 21 (1988): 971Google Scholar; McClain, Linda C., “Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, and Christian Legal Society,” Cardozo Law Review 32, no. 5 (2011): 1975.Google Scholar

⁶⁸ Litigant 4 Interview.

⁶⁹ Ibid.

⁷⁰ See Tyler, Tom R., “Social Justice: Outcome and Procedure,” International Journal of Psychology, Diplomacy and Psychology, 35, no. 2 (April 2000): 117–25CrossRefGoogle Scholar; Tyler, “The Psychology of Legitimacy: A Relational Perspective on Voluntary Deference to Authorities”; Simon and Scurich, “Lay Judgments of Judicial Decision Making.”