Freedom of Conscience and Religion

AuthorRobert J. Sharpe; Kent Roach
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
4 Edwards Books & Art Ltd v R, [1986] 2 SCR 713, 35 DLR (4th) 1 at 759 [Edwards
5 Syndicat Northcrest, above note 2 at para 42.
6 Ibid at p ara 46.

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