Freedom of Conscience and Religion

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 132-154

132

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 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 relig ious minorities is one of the

hallmark s 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 Canad ians. 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 t he 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

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

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

Freedom of Conscience a nd Religion 133

beliefs, or does it include the right to express those beliefs, free from

state interference? What should be done when religious beliefs clash

with other Charter values, for example, equality and freedom from dis -

criminat ion on issues such as same-sex marriage? As with the other

Charter rights, the courts have had to determine t he scope of the right

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 limitat ions 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

The Supreme Court has endorsed “a personal or subjective con-

ception 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 sub-

jective approach to freedom of religion means that the emphasis is on

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

a particular 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 dog ma 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 (SCR) [Big

M Drug Mart].

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

[Edwards Books].

5 Syndicat Northcrest, above note 2 at para 42.

6 Ibid at para 46.