Freedom of Conscience and Religion

• Author: Robert J. Sharpe; Kent Roach
• Pages: 140-165

140

CHA PTER 8

FR EEDOM OF

CONSCIENCE AND

R ELIGIO N

Freedom of religion was recognized by t he 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 in-

terpretation of statutes and the enforcement of the division of powers.

In particula r, the inability of province s to enact criminal laws led to the

striking dow n of some laws that had di scriminatory effects against reli-

gious mi norities.1 The Supreme Court has recognized that “an import-

ant 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 rel igious minorities is one of the

hallmarks of an enlightened democracy.”2

Section 2(a) of the Charter now provides that “freedom of con-

science and religion” is a fundamental r ight of all Canadians. Although

the Charter respect s every individual’s freedom of conscience and re-

ligion as a necessar y 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 t he 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 beliefs,

1 Saumur v Quebec, [1953] 2 SCR 299, [1953] 4 DLR 641, discussed in Chapter 1.

2 Syndicat Northcrest v Amsele m, [2004] 2 SCR 551 at para 1 [Syndicat Northcrest].

Freedom of Conscience a nd Religion 141

or does it include the right to express t hose beliefs, free from state

interference? Must the state be neutral to all religions? What should

be done when religious beliefs clash with other Charter values, for ex-

ample, equality and freedom from discrimination on issue s such as

same-sex marriage? As with the other Charte r rights, the courts have

had to determine the scope of the r ight 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 ever y individual to “be free to hold

and to manifest whatever beliefs and opinions his or her conscience

dictates, prov ided inter alia only that such manifestations do not injure

his or her neighbours or their paral lel rights to hold and manifest be-

liefs and opinions of their own.”3 It has elaborated that “the pur pose of

section 2(a) is to ensure that society does not interfere with profoundly

personal beliefs t hat govern one’s perception of oneself, humankind,

nature, and in some case s, a higher or different order of being. These

beliefs, in turn, govern one’s conduct and practices.”4

When exactly is the sect ion 2(a) right engaged? The Supreme Court

has endorsed “a personal or subjective conception of freedom of reli-

gion, one that is integrally l inked with an indiv idual’s self-def‌inition

and fulf‌illment and i s a function of personal autonomy and choice, ele-

ments which undergird the rig ht.”5 The subjective approach to freedom

of religion means that t he emphasis is on t he sincerity of a person’s sub-

jective claim of belief and not whether a part icular practice objectively

f‌its into an off‌icial religion. In other words,

Freedom of religion consist s of the freedom to underta ke practices

and harbour belie fs, having a nexu s with religion, in which a n indi-

vidual demonstr ates that he or she sincerely believe s or is sincerely

undertaki ng in order to connect with the d ivine or as a function of

his or her spiritu al faith, irrespect ive of whether a particular practice

or belief is require d by off‌icial religious dogm a or is in conformity

with the posit ion of religious off‌icia ls.6

3 R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 18 DLR (4th) 321 at 346 [Big M Drug

Mart].

4 Edwards Books & Art Ltd v R, [1986] 2 SCR 713, 35 DLR (4th) 1 at 759 [Edwards

Books].

5 Syndicat Northcrest, above note 2 at para 42.

6 Ibid at p ara 46.