Freedom of Conscience and Religion

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 121-138

CHAP TER 8

FR EEDOM OF

CONSCIENCE

A ND R ELIGIO N

Freedom of religion was recognized b y the courts as an important value

of Canadian society long before the enactment of the Charter of Rights

and Freedoms, but it could only be protected indirectly through the in-

terpretation of statutes and the enforcement of the divi sion of powers.

In particular, the inability of provinces to enact crimi nal laws led to

the striking down of some laws that had discrim inatory effects against

religious minorities.1 The Supreme Court has recogni zed that “an im-

portant feature of our constitutional democracy is respect for minori-

ties, which includes, of course, religious minorities. Indeed respect for

and tolerance of the rights and pract ices of religious minorities is one

of the hallmarks of an enlightened democracy.”2

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

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

the Charter respects 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 th at it offers protection to all actions

dictated by religious bel ief. Can the state prevent religious pract ices,

such as female circumci sion, which are regarded by the majority as

harmful? Does the state have a positive duty to prov ide funding for

religious schools or to make special allowances for the constr uction of

1Saumur v. Quebec, [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641, discusse d in chapter 1.

2Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. 1 [Syndic at

Northcre st].

121

the

charter of r ights and fr eedoms

122

places of worship? Does section 2(a) protect only the right to hold be-

liefs, or does it include the right to expre ss those beliefs, free from state

interference? What should be done when religious beliefs clash with

other Charter values, for exa mple, equality and freedom from di scrimi-

nation on i ssues such as same-sex ma rri age? As with the other Charter

rights, the courts h ave had to determine the scope of the right to free-

dom of conscience and religion guaranteed by section 2(a), the proper

approach to reconciling freedom of conscience and religion with other

Charter rights, and t he 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 f ree to hold

and to manifest whatever bel iefs and opinions his or her conscience

dictates, provided inter alia only t hat such m anifest ations do not injure

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

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

of s. 2(a) is to ensure that society does not interfere with profoundly

persona l belief s that gove rn one’s perception of ones elf, huma nkind ,

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

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

The Supreme Court has recently endorsed “a personal or subjective

conception of freedom of religion, one that is integrally linked with an

individual’s self-definition and fulfillment and is a function of personal

autonomy and choice, elements which undergird the right.”5 The subjec-

tive approach to freedom of religion means t hat the emphasis is on t he

sincerity of a person’s subjective claim of belief and not whether a par-

ticular practice objectively fits into an official religion. In other words,

Freedom of religion consist s of the freedom to undert ake practices

and harbour belie fs, having a nex us with relig ion, in which an indi-

vidual demons trates th at he or she sincerely bel ieves or is sinc erely

undertaki ng in order to connect with t he divine or as a f unction of

his or her spirit ual faith, irrespect ive of whether a particular pract ice

or belief is required by official religious dogma or is in conformity

with the posit ion of religious official s.6

3R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 at 346

(S.C. R.) [Big M Drug Mart].

4Edwards Books & Art Ltd. v. R., [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1 at 759

(S.C. R.) [Edwards Books].

5Synd icat No rthcre st, above note 2 at para. 42.

6Ibid. at para. 46.