Freedom of Conscience and Religion

• Author: Robert J. Sharpe; Kent Roach
• Pages: 149-175

149

CHA PTER 8

FR EEDOM OF

CONSCIENCE

AND R ELIGION

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

interpretation of statutes and the en forcement of the division of powers.

In particular, the inability of provinces to enact crim inal laws led to

the striking down of some laws that had discr iminatory eects against

religiou s minorit ies.1

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

science and religion” is a fundamental r ight of all Canadian s. The

Supreme Court of Canada has recogn ized that “an important feature of

our constitutional democracy is re spect for minorities, which includes,

of course, religious minorities. Indeed re spect for and tolerance of the

rights and practices of rel igious minorities is one of the hallmark s of an

enlightened democracy.”2

Although the Char ter respects every individual’s freedom of con-

science and religion as a necessa ry element of personal dignit y, auton-

omy, and self-development, this does not mean that it oers protection

to all actions dictated by relig ious belief. Can the state prevent reli-

gious practices, such as female circumcision, which are regarded by

the majority as har mful? Does the state have a positive duty to provide

1 Saumur v Quebec (City), [1953] 2 SCR 299, [1953] 4 DLR 641, discussed i n Chap-

ter 1.

2 Syndicat Northcrest v Amsele m, 2004 SCC 47, [2004] 2 SCR 551 at para 1 [Syndi cat

Northcre st].

THE CHARTER OF R IGHTS AND FR EEDOMS150

funding for religious schools or to make special allowances for the con-

struction of places of worship? Does section 2(a) protect only the right

to hold beliefs, 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 val-

ues — for example, equality and freedom from discr imination on issues

such as same-sex ma rriage? As with the other Charter r ights, 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 recon-

ciling freedom of conscience and relig ion with other Charter right s, and

the range of acceptable limitations under sect ion 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 a nd opinions his or her conscience

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

his or her neighbours or their para llel rights to hold and manifest beliefs

and opinions of their own.”3 It has elaborated that “the purpose of sec-

tion 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 dierent order of being. These

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

When, exactly, is the section 2(a) right engaged? The Supreme Court

has endorsed “a personal or subjective conception of freedom of religion,

one that is integrally l inked with an indiv idual’s self-def‌inition and ful-

f‌illment and is a function of personal autonomy and choice, elements

which undergird the right.”5 The subjective approach to freedom of reli-

gion means that the empha sis is on the sincerity of a person’s subjective

claim of belief and not whether a part icular practice objectively f‌its into

an ocial religion. In other words:

Freedom of religion consist s of the freedom to undertake pr actices

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

vidual demonstr ates that he or she sincerely bel ieves or is sincerely

undertaki ng in order to connect with the divi ne or as a function of his

or her spiritual f aith, irrespec tive of whether a particul ar practice or

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 Syndi cat Nor thcre st, above note 2 at para 42.