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
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].
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
4 Edwards Books & Art Ltd v R, [1986] 2 SCR 713, 35 DLR (4th) 1 at 759 [Edwards
5 Syndi cat Nor thcre st, above note 2 at para 42.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT