Freedom of Conscience

• Author: Richard Moon
• Profession: Faculty of Law, University of Windsor
• Pages: 186-198

186

CHA PTER 7

FR EEDOM OF

CONSCIENCE

A. INTRODUCTION

Despite the courts’ formal def‌inition of the scope of freedom of con-

science and religion as encompassing both religious and nonreligious

beliefs, religious beliefs have been at the centre of the section 2(a)

Charter1 jurisprudence. In their section 2(a) decisions, the courts seem

to regard religious beliefs and practices as special or as different from

other, nonreligious, beliefs and practices. The state should remain neu-

tral in matters of religion. It should neither support particular religious

practices nor restrict such practices without adequate reasons. While

the courts have said that freedom of conscience may be breached when

the state restricts a nonreligious practice, it is diff‌icult to f‌ind cases in

which section 2(a) has been successfully used to protect such a prac-

tice. Moreover, the courts appear not to have considered the possibil-

ity that section 2(a) may be breached when the state compels or sup-

ports a nonreligious practice. In other words, freedom of conscience

may sometimes protect the individual’s freedom to “conscience” (her

freedom from interference with her fundamental commitments) but not

1 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, be-

ing Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].