Freedom of Conscience and Religion

• Author: Robert J. Sharpe, Kent Roach
• Pages: 129-149

129

CHA PTER 8

FREEDOM OF

CONSCIENCE

AND RELIGION

Freedom of religion was recognized by the courts as an important value

of Canadian society long before t he enactment of t he Charter of Rights

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

terpretation of statutes and the enforcement of the div ision of powers.

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

striking down of some laws that had discriminatory effects against reli-

gious minorities.1 The Supreme Court has recognized t hat “an import-

ant feature of our constitutional democracy is respect for minorities,

which includes, of course, religious minorities. Indeed re spect for and

tolerance of the rights and practices of religious minorities is one of the

hallmark s of an enlightened democracy.”2

Section 2(a) of the Charter no w p rov id es th at “f re edo m o f co ns ci en ce

and religion” is a fundamental right of all Canadians. Although the Char-

ter respects every individual’s freedom of conscience and religion as a

necessary element of personal dignity, autonomy, and self-development,

this does not mea n t hat it offers protection to a ll actions dictated by

reli gious be lief. Ca n the sta te prevent religiou s practi ces, suc h as fema le

circumcision, which are regarded by the m ajorit y as har mful? Does the

state h ave a positive duty to provide f unding for relig ious schools or

to make speci al allowances for the construction of places of worship?

Does section 2(a) protect only the right to hold beliefs, or does it include

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

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

THE CHARTER OF R IGHTS A ND FREEDOMS130

the right to express those beliefs, f ree from state interference? What

should be done when religious beliefs clash w ith other Ch arter values,

for example, equality and freedom from discr imination on issues such

as same-sex marriage? As with the other Charter righ ts, the c ourts h ave

had to determine the scope of t he right to freedom of conscience and

religion guaranteed by sect ion 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 t he ability of every i ndividual to “be free to hold

and to manifest whatever beliefs and opinions his or her conscience

dictates, provided inter alia only that such manifestations do not injure

his or her neighbours or their parallel r ights to hold and ma nifest be-

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

section 2(a) is to ensure that society does not interfere with profoundly

personal beliefs that govern one’s perception of oneself, humankind,

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

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

The Supreme Court has recently endorsed “a per sonal 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 r ight.”5 The sub-

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

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

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

Freedom of religion consi sts of the freedom to undertake pract ices

and harbour beliefs, hav ing a nexus with religion, in wh ich an indi-

vidual demonstrates that he or she sincerely believes or is sincerely

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

his or her spiritual fait h, irrespect ive of whether a particul ar practice

or bel ief is required by off‌icial rel igious dogma or is in conformity

with the posit ion of religious of f‌icials.6

At the same time, freedom of religion also applies to “the right to mani-

fest religious belief by worship, teach ing, di ssemination and religious

3 R. 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 Mar t].

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

(S.C.R.) [Edwards Book s].

5 Syndicat Northcrest, above note 2 at pa ra. 42.

6 Ibid. at para. 46.