Freedom of conscience and religion

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Freedom of religion was recognized by the courts as an important value of Canadian society long before the enactment of the Charter of Rights and Freedoms, but it could be protected only indirectly through the interpretation of statutes and the enforcement of the division of powers. In particular, the inability of provinces to enact criminal laws led to the striking down of some laws that had discriminatory effects against religious minorities.1The Supreme Court has recognized that "an important feature of our constitutional democracy is respect for minorities, which includes, of course, religious minorities. Indeed respect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy."2Section 2(a) of the Charter now provides that "freedom of conscience and religion" is a fundamental right of all Canadians. Although the Charter respects every individual’s freedom of conscience and religion as a necessary element of personal dignity, autonomy, and self-development, this does not mean that it offers protection to all actions dictated by religious belief. Can the state prevent religious practices, such as female circumcision, which are regarded by the majority as harmful? Does the state have a positive duty to provide funding for religious schools or to make special allowances for the construction of places of worship? Does section 2(a) protect only the right to hold

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beliefs, or does it include the right to express those beliefs, free from state interference? What should be done when religious beliefs clash with other Charter values, for example, equality and freedom from discrimination on issues such as same-sex marriage? As with the other Charter rights, the courts have had to determine the scope of the right to freedom of conscience and religion guaranteed by section 2(a), the proper approach to reconciling freedom of conscience and religion with other Charter rights, and the range of acceptable limitations under section 1.

Freedom of religion protects individual autonomy, freedom, and dignity. The Supreme Court has articulated the purpose of freedom of religion as related to the ability of every individual to "be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of...

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